One Justice dissents from dismissal, cautioning that death penalty sanctions should not imposted lightly. It was not clear whether the party or her attorney was at fault.
Holik v. Holik and in the Interest of A.F.H., a Child, No. 10-07-00239-CV (Tex.App.- Waco, Nov. 15, 2007)(Opinion by Chief Justice Gray, dissenting note by Justice Vance) (Before Chief Justice Gray, Justices Vance and Reyna)
In the Matter of the Marriage of Jackie Holik and Melissa Holik and in the Interest of A.F.H., a Child--Appeal from County Court at Law of Walker County
MEMORANDUM Opinion
Melissa Holik appeals from an adverse judgment rendered in a divorce and child custody case. She has not filed a docketing statement. See Tex. R. App. P. 32.
In a letter dated September 10, 2007, the Clerk of this Court notified Melissa that the docketing statement must be filed within 21 days from the date of the letter. No docketing statement was filed. In another letter dated October 10, 2007, the Clerk warned Melissa that if the docketing statement was not filed within 21 days from the date of the letter, the appeal would be dismissed without further notification. See Tex. R. App. P. 42.3(b), (c) and 44.3.
More than 21 days have passed and we have not received the docketing statement. Accordingly, this appeal is dismissed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance dissents with a note)*
Appeal dismissed
Opinion delivered and filed November 14, 2007
* “(The clerk’s record contains a motion for new trial supported by Appellant’s affidavit, which shows that this appeal has arguable merit. Our records affirmatively show that the Appellant has no knowledge of any action we have taken since the filing of this appeal; all correspondence has been to her attorney. Yet, we have made no effort to determine whether the failure to file a docketing statement is due to the attorney or the Appellant. Because dismissal as a sanction is, in effect, a “death penalty,” which precludes consideration of the merits of the Appellant’s claim, a direct relationship must exist between the offensive conduct and the sanction imposed. See Olivarez v. State, 183 S.W.3d 59, 61 (Tex. App.—Waco 2005, no pet.) (Vance, J. concurring). Furthermore, we should consider relatively less stringent sanctions first to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse. Id.)”
Sunday, November 25, 2007
Error in Disposition of Military Retirement Benefits Requires Reversal of Property Division and Child Support
Waco Court of Appeals reverses disposition of military retirment benefits in divorce; also reverses child support because it was affected by the error in division of property. Chief Justice would have affirmed.
Anderson v. Anderson, No. 10-06-00361-CV (Tex.App.- Waco, Nov. 14, 2007)(Opinion by Justice Reyna ) Dissenting Opinion by Chief Justice Gray
(military retirement benefits, estoppel, child support, intentional underemployment)
(Before Chief Justice Gray, Justices Vance and Reyna)
Full style: In the Matter of the Marriage of Sylvester Anderson and Diona Marie Anderson and in the Interest of S.E.A. and B.T.W.A., Children
Appeal from 378th District Court of Ellis County
Disposition: Reversed and Remanded
MEMORANDUM OPINION
Sylvester Anderson appeals from a divorce decree, claiming in two issues that: (1) the court improperly construed the parties’ postnuptial agreement to be ambiguous and thus erroneously awarded each party a one-half interest in the other’s military retirement benefits; and (2) the court abused its discretion by awarding child support in excess of the statutory guidelines because of a finding of intentional underemployment. Appellee Diona Marie Patera presents two cross-issues in which she contends: (1) Sylvester is precluded from attacking the divorce decree because he has remarried; and (2) the parties’ postnuptial agreement is unenforceable under California law. We will reverse and remand.
Acquiescence in Decree
Diona contends in her first cross-issue that Sylvester is estopped to challenge the divorce decree because he acquiesced in the decree by remarrying. She cites Bragdon v. Bragdon, 594 S.W.2d 561 (Tex. Civ. App.—Amarillo 1980, writ ref’d n.r.e.), in support of this proposition. This contention appears to be based on “the well-settled ‘acceptance of benefits’ rule, under which a party who accepts the benefit of a judgment is estopped from challenging the judgment by appeal.” Williams v. LifeCare Hosps. of N. Tex., L.P., 207 S.W.3d 828, 830 (Tex. App.—Fort Worth 2006, no pet.). We reject Diona’s contention for two reasons.
First, Bragdon involved a collateral attack on a prior divorce decree. See Bragdon, 594 S.W.2d at 562-63. The former wife sought to enforce an Alabama divorce decree in Texas, but the former husband argued in a counterclaim that the Alabama decree was void because the Alabama court did not have jurisdiction of the parties. Id. at 562. Sylvester, on the other hand, is challenging the property division aspects of the divorce decree in this case by direct appeal.
Second, under the “acceptance of benefits” rule, an exception applies “when the reversal of the judgment on the grounds appealed cannot possibly affect an appellant’s right to the benefits accepted under the judgment.” Williams, 207 S.W.3d at 830; accord Waite v. Waite, 150 S.W.3d 797, 804 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Here, a reversal of the divorce decree because of the manner in which the trial court divided the parties’ community estate or awarded child support “cannot possibly affect” the dissolution of the parties’ marriage. See id.
Therefore, we hold that Sylvester is not estopped to challenge the divorce decree on the grounds he has asserted. Diona’s first cross-issue is overruled.
Military Retirement
Sylvester contends in his first issue that the court improperly construed the parties’ postnuptial agreement to be ambiguous and thus erroneously awarded each party a one-half interest in the other’s military retirement benefits.
“Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered.” Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam) (quoting Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996)); Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (same). An ambiguity does not exist merely because the parties assert conflicting interpretations. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (orig. proceeding). Rather, an ambiguity exists only if the contract is susceptible to two or more reasonable interpretations. Id.; Roman, 193 S.W.3d at 50.
Here, the parties’ postnuptial agreement contains the following provision regarding their military retirement benefits:
Husband is a Sergeant and the Wife is a Corporal in the U.S. Marine Corps and their active service for purposes of retirement began on December 28, 1977 for the Husband and February 4, 1982 for the Wife. The parties have agreed that they do expressly waive all rights they may have in and to said retirements.
This provision (the “retirement clause”) is labeled as paragraph d of section II of the agreement, which section is entitled “Division of Community Property.”
Because both Sylvester and Diona began active service in the Marines before their marriage, only a percentage of their respective military retirement benefits can be considered community property. See Limbaugh v. Limbaugh, 71 S.W.3d 1, 16-17 & n.12 (Tex. App.—Waco 2002, no pet.). Thus, at the time they executed their postnuptial agreement, they each owned community property interests in their own military retirement benefits, community property interests in each other’s benefits, and separate property interests in their own benefits.
Because the retirement clause is located in a section of the agreement entitled “Division of Community Property,” Sylvester and Diona waived one or more of the community property interests they held in these benefits under the language of this clause. See Enter. Leasing, 156 S.W.3d at 549 (ambiguity “must be decided by examining the contract as a whole”); Roman, 193 S.W.3d at 50 (same). Thus, they waived: (1) the community property interests they held in their own benefits; (2) the community property interests they held in each other’s benefits; and/or (3) all community property interests they held in their combined military retirement benefits.
We hold as a matter of law that the only reasonable interpretation of the retirement clause is that Sylvester and Diona each waived the community property interest they held in the other’s military retirement benefits. See D. Wilson Constr., 196 S.W.3d at 781; Roman, 193 S.W.3d at 50. Stated another way, it is unreasonable to believe (under optional interpretation (1) above) that Sylvester and Diona intended to designate the community property interests they held in their own military retirement benefits as each other’s separate property. Cf Tex. Fam. Code Ann. § 4.102 (Vernon 2006) (spouses may partition or exchange community property by agreement). It is likewise unreasonable to believe (under optional interpretation (3) above) that they each agreed to forfeit all community property interests they held in their combined military retirement benefits.
Accordingly, we sustain Sylvester’s first issue.
Enforceability of Postnuptial Agreement
Diona contends in her second cross-issue that the postnuptial agreement is unenforceable because the parties did not comply with section 1615 of the California Family Code when they executed the agreement.
Sylvester and Diona executed this agreement when they were stationed in California. By its own terms, the agreement is governed by California law. Under section 1615, “[a] premarital agreement is not enforceable” against a party who “did not execute the agreement voluntarily.” Cal. Fam. Code § 1615(a)(1) (West 2004). Subsection (c) of this statute then provides that such an agreement “shall be deemed” to have not been executed voluntarily if a party was not “represented by independent legal counsel” at the time of execution, unless expressly waived, or if the party was not given at least seven days to consult with counsel between the time the agreement was first presented to the party and the time it was signed. Id. § 1615(c) (West 2004).
However, section 1615 applies only to premarital agreements. Id. § 1615(a); In re Marriage of Friedman, 100 Cal. App. 4th 65, 122 Cal. Rptr. 2d 412, 417 (Cal. Ct. App. 2002). Sylvester and Diona executed the postnuptial agreement at issue nearly eighteen months after they were married. Accordingly, any failure to satisfy the requirements of section 1615 does not render their agreement unenforceable. See Friedman, 122 Cal. Rptr. 2d at 417. Thus, we overrule Diona’s second cross-issue.
Intentional Underemployment
Sylvester contends in his second issue that the court abused its discretion by awarding child support in excess of the statutory guidelines because of a finding of intentional underemployment.[1]
We review child support orders under an abuse-of-discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re J.C.K., 143 S.W.3d 131, 134 (Tex. App.—Waco 2004, no pet.). We do not conduct an independent review of findings of fact in a child support case under traditional legal and factual sufficiency standards. J.C.K., 143 S.W.3d at 135; London v. London, 94 S.W.3d 139, 143-44 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Rather, legal and factual sufficiency are factors which can be considered in determining whether an abuse of discretion has occurred. J.C.K., 143 S.W.3d at 135; London, 94 S.W.3d at 143-44.
In re J.D.M., 221 S.W.3d 740, 742 (Tex. App.—Waco 2007, no pet.).
Under the Family Code, a child support award is generally based on the net monthly resources of the obligor. Tex. Fam. Code Ann. §§ 154.125-154.126 (Vernon 2002). Section 154.066 permits a trial court to apply the child support guidelines to the “earning potential of the obligor” if the court determines that the obligor is intentionally unemployed or underemployed. Id. § 154.066 (Vernon 2002).
To support a finding of intentional underemployment or unemployment, there must be evidence the obligor reduced his or her income with the intention of decreasing the child support payment. Garner v. Garner, 200 S.W.3d 303, 306-07 (Tex. App.—Dallas 2006, no pet.); In re E.A.S., 123 S.W.3d 565, 570 (Tex. App.—El Paso 2003, pet. denied). This intent may be inferred from such circumstances as the parent’s education, economic adversities, business reversals, business background, and earning potential. Id.
Here, it is undisputed that, after taking into account the trial court’s award of fifty percent of Sylvester’s retirement to Diona, Sylvester received a monthly net retirement benefit of $505 and a monthly net disability benefit of $875.[2] See Tex. Fam. Code Ann. § 154.062(b)(5) (Vernon 2002) (obligor’s net resources include “retirement” and “disability” benefits). Sylvester testified that he was employed for a period of time after retirement by Greyhound but had to quit because of physical problems associated with his disability.[3] According to Diona, he earned about $25,000 per year working for Greyhound.
Most of the dispute regarding Sylvester’s income or potential income relates to the cars he owns. Diona testified that Sylvester repairs and resells old cars. She estimated that he sold between thirty and forty cars in 2005 and made about $4,500 net per month doing so. She testified to one occasion in April 2005 when Sylvester showed her a briefcase containing $50,000 in cash which he had acquired from selling cars. According to her, he has cars in three states (Mississippi, Texas, and California) available to sell.
Sylvester disputed much of Diona’s testimony. He denies that he has ever been in the car selling business. He explained that he was keeping an unspecified number of cars which he has listed in his will and hopes to leave for their children. He testified that he has several friends who leave their cars on his property because he has plenty of space. He stated that he had never sold even fifteen cars in a single year. Sylvester estimated that if he did sell cars, he “probably could make $5,000 a year.” He testified that he had sold a few cars in the months preceding the final hearing[4] just to cover his monthly expenses.
In this final hearing, Diona testified that Sylvester has “earning potential” from work and the “car business” but “[h]e’s just choosing not to use it.” She also refers us to a portion of Sylvester’s testimony from which it could be inferred that he decided to stop selling cars after learning that his child support obligation would be based on the income he earned from sales. This testimony was provided when Diona’s counsel was cross-examining Sylvester about when he sold a 1970 Dodge Charger. “When it was [sic] in the process of being sold? 2005. When the court date -- we -- we first -- the decree. And then once I was told that I was going to have to pay $600 for child support and was based on the cars --.“
The trial court ordered Sylvester to pay $450 per month in child support for his two children.[5] We conclude that no abuse of discretion is shown for several reasons.
If the trial court took Sylvester at his word, he could make about $5,000 per year selling cars. This income, when combined with his retirement and disability income would support a monthly child support award of $449.[6] Sylvester also testified that he has several cars which he could sell but is not because he would like to give them to his children when he dies. See Tex. Fam. Code Ann. § 154.067(a) (Vernon 2002) (court may assign reasonable amount of deemed income to obligor’s assets which could be liquidated). Finally, if the court fully accepted Diona’s testimony regarding income Sylvester could realize from selling cars ($4,500 net per month), the testimony would support a monthly child support award of $1,470.[7]
Based on the parties’ circumstances and the testimony regarding whether Sylvester was not selling cars because he wanted to lower his child support obligation, we hold that the court did not abuse its discretion by finding that Sylvester is intentionally underemployed. See Garner, 200 S.W.3d at 307-08; E.A.S., 123 S.W.3d at 570-72. Accordingly, we overrule Sylvester’s second issue.
Conclusion
We have found error in the manner in which the trial court divided Sylvester’s military retirement benefits. These benefits were a primary factor in the court’s calculation of his child support obligation. Therefore, we reverse the judgment and remand this cause for further proceedings consistent with this opinion. See Wilson v. Wilson, 132 S.W.3d 533, 538-39 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (remanding child support determination and property division because child support determination can be “materially influenced” by property division).
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed November 14, 2007
[CV06]
[1] Finding of Fact No. 7 states, “Child support should be set at $450.00 per month beginning November 1, 2005 based on the earnings that Sylvester Anderson has the potential of earning if he were not intentionally underemployed and applying the Supreme Court guidelines.”
[2] The parties offered little documentary evidence to substantiate their testimony regarding their own and each other’s income. In a letter to the trial court, Sylvester’s counsel asked the court to base Sylvester’s child support obligation on these figures, which are consistent with Sylvester’s testimony regarding his monthly benefits. Therefore, we are treating these figures as net income.
[3] Sylvester testified that his disability came from unspecified “neck and pain injuries” which he sustained while lifting weights. He explained that he had been on a Marine Corps weightlifting team and was a five-time world champion.
[4] The court actually conducted four hearings in this matter: (1) an October 31, 2005 “Final Divorce Hearing”; (2) a February 8, 2006 hearing for entry of judgment; (3) a May 9, 2006 hearing on Sylvester’s motion for new trial; and (4) a June 6, 2006 “Final Hearing” in which the parties provided additional testimony regarding child support and visitation. Sylvester provided this particular testimony during the June 6 hearing.
[5] There were actually two divorce decrees in this case. In the first decree, the court ordered Sylvester to pay $600 per month in child support. However, the court granted Sylvester’s motion for new trial in part based on Sylvester’s contention that the child support award had been calculated based on 100% of Sylvester’s military retirement, even though the court had awarded 50% of his retirement to Diona.
[6] $5,000 per year is approximately $417 per month. $875 + $505 + $417 = $1,797. In this scenario, 25% of Sylvester’s actual and potential net monthly income of $1,797 would be $449. See Tex. Fam. Code Ann. § 154.125(b) (Vernon 2002) (child support for two children is 25% of monthly net resources).
[7] $875 + $505 + $4,500 = $5,880 x 0.25 = $1,470
Anderson v. Anderson, No. 10-06-00361-CV (Tex.App.- Waco, Nov. 14, 2007)(Opinion by Justice Reyna ) Dissenting Opinion by Chief Justice Gray
(military retirement benefits, estoppel, child support, intentional underemployment)
(Before Chief Justice Gray, Justices Vance and Reyna)
Full style: In the Matter of the Marriage of Sylvester Anderson and Diona Marie Anderson and in the Interest of S.E.A. and B.T.W.A., Children
Appeal from 378th District Court of Ellis County
Disposition: Reversed and Remanded
MEMORANDUM OPINION
Sylvester Anderson appeals from a divorce decree, claiming in two issues that: (1) the court improperly construed the parties’ postnuptial agreement to be ambiguous and thus erroneously awarded each party a one-half interest in the other’s military retirement benefits; and (2) the court abused its discretion by awarding child support in excess of the statutory guidelines because of a finding of intentional underemployment. Appellee Diona Marie Patera presents two cross-issues in which she contends: (1) Sylvester is precluded from attacking the divorce decree because he has remarried; and (2) the parties’ postnuptial agreement is unenforceable under California law. We will reverse and remand.
Acquiescence in Decree
Diona contends in her first cross-issue that Sylvester is estopped to challenge the divorce decree because he acquiesced in the decree by remarrying. She cites Bragdon v. Bragdon, 594 S.W.2d 561 (Tex. Civ. App.—Amarillo 1980, writ ref’d n.r.e.), in support of this proposition. This contention appears to be based on “the well-settled ‘acceptance of benefits’ rule, under which a party who accepts the benefit of a judgment is estopped from challenging the judgment by appeal.” Williams v. LifeCare Hosps. of N. Tex., L.P., 207 S.W.3d 828, 830 (Tex. App.—Fort Worth 2006, no pet.). We reject Diona’s contention for two reasons.
First, Bragdon involved a collateral attack on a prior divorce decree. See Bragdon, 594 S.W.2d at 562-63. The former wife sought to enforce an Alabama divorce decree in Texas, but the former husband argued in a counterclaim that the Alabama decree was void because the Alabama court did not have jurisdiction of the parties. Id. at 562. Sylvester, on the other hand, is challenging the property division aspects of the divorce decree in this case by direct appeal.
Second, under the “acceptance of benefits” rule, an exception applies “when the reversal of the judgment on the grounds appealed cannot possibly affect an appellant’s right to the benefits accepted under the judgment.” Williams, 207 S.W.3d at 830; accord Waite v. Waite, 150 S.W.3d 797, 804 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Here, a reversal of the divorce decree because of the manner in which the trial court divided the parties’ community estate or awarded child support “cannot possibly affect” the dissolution of the parties’ marriage. See id.
Therefore, we hold that Sylvester is not estopped to challenge the divorce decree on the grounds he has asserted. Diona’s first cross-issue is overruled.
Military Retirement
Sylvester contends in his first issue that the court improperly construed the parties’ postnuptial agreement to be ambiguous and thus erroneously awarded each party a one-half interest in the other’s military retirement benefits.
“Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered.” Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam) (quoting Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996)); Roman v. Roman, 193 S.W.3d 40, 50 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (same). An ambiguity does not exist merely because the parties assert conflicting interpretations. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (orig. proceeding). Rather, an ambiguity exists only if the contract is susceptible to two or more reasonable interpretations. Id.; Roman, 193 S.W.3d at 50.
Here, the parties’ postnuptial agreement contains the following provision regarding their military retirement benefits:
Husband is a Sergeant and the Wife is a Corporal in the U.S. Marine Corps and their active service for purposes of retirement began on December 28, 1977 for the Husband and February 4, 1982 for the Wife. The parties have agreed that they do expressly waive all rights they may have in and to said retirements.
This provision (the “retirement clause”) is labeled as paragraph d of section II of the agreement, which section is entitled “Division of Community Property.”
Because both Sylvester and Diona began active service in the Marines before their marriage, only a percentage of their respective military retirement benefits can be considered community property. See Limbaugh v. Limbaugh, 71 S.W.3d 1, 16-17 & n.12 (Tex. App.—Waco 2002, no pet.). Thus, at the time they executed their postnuptial agreement, they each owned community property interests in their own military retirement benefits, community property interests in each other’s benefits, and separate property interests in their own benefits.
Because the retirement clause is located in a section of the agreement entitled “Division of Community Property,” Sylvester and Diona waived one or more of the community property interests they held in these benefits under the language of this clause. See Enter. Leasing, 156 S.W.3d at 549 (ambiguity “must be decided by examining the contract as a whole”); Roman, 193 S.W.3d at 50 (same). Thus, they waived: (1) the community property interests they held in their own benefits; (2) the community property interests they held in each other’s benefits; and/or (3) all community property interests they held in their combined military retirement benefits.
We hold as a matter of law that the only reasonable interpretation of the retirement clause is that Sylvester and Diona each waived the community property interest they held in the other’s military retirement benefits. See D. Wilson Constr., 196 S.W.3d at 781; Roman, 193 S.W.3d at 50. Stated another way, it is unreasonable to believe (under optional interpretation (1) above) that Sylvester and Diona intended to designate the community property interests they held in their own military retirement benefits as each other’s separate property. Cf Tex. Fam. Code Ann. § 4.102 (Vernon 2006) (spouses may partition or exchange community property by agreement). It is likewise unreasonable to believe (under optional interpretation (3) above) that they each agreed to forfeit all community property interests they held in their combined military retirement benefits.
Accordingly, we sustain Sylvester’s first issue.
Enforceability of Postnuptial Agreement
Diona contends in her second cross-issue that the postnuptial agreement is unenforceable because the parties did not comply with section 1615 of the California Family Code when they executed the agreement.
Sylvester and Diona executed this agreement when they were stationed in California. By its own terms, the agreement is governed by California law. Under section 1615, “[a] premarital agreement is not enforceable” against a party who “did not execute the agreement voluntarily.” Cal. Fam. Code § 1615(a)(1) (West 2004). Subsection (c) of this statute then provides that such an agreement “shall be deemed” to have not been executed voluntarily if a party was not “represented by independent legal counsel” at the time of execution, unless expressly waived, or if the party was not given at least seven days to consult with counsel between the time the agreement was first presented to the party and the time it was signed. Id. § 1615(c) (West 2004).
However, section 1615 applies only to premarital agreements. Id. § 1615(a); In re Marriage of Friedman, 100 Cal. App. 4th 65, 122 Cal. Rptr. 2d 412, 417 (Cal. Ct. App. 2002). Sylvester and Diona executed the postnuptial agreement at issue nearly eighteen months after they were married. Accordingly, any failure to satisfy the requirements of section 1615 does not render their agreement unenforceable. See Friedman, 122 Cal. Rptr. 2d at 417. Thus, we overrule Diona’s second cross-issue.
Intentional Underemployment
Sylvester contends in his second issue that the court abused its discretion by awarding child support in excess of the statutory guidelines because of a finding of intentional underemployment.[1]
We review child support orders under an abuse-of-discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re J.C.K., 143 S.W.3d 131, 134 (Tex. App.—Waco 2004, no pet.). We do not conduct an independent review of findings of fact in a child support case under traditional legal and factual sufficiency standards. J.C.K., 143 S.W.3d at 135; London v. London, 94 S.W.3d 139, 143-44 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Rather, legal and factual sufficiency are factors which can be considered in determining whether an abuse of discretion has occurred. J.C.K., 143 S.W.3d at 135; London, 94 S.W.3d at 143-44.
In re J.D.M., 221 S.W.3d 740, 742 (Tex. App.—Waco 2007, no pet.).
Under the Family Code, a child support award is generally based on the net monthly resources of the obligor. Tex. Fam. Code Ann. §§ 154.125-154.126 (Vernon 2002). Section 154.066 permits a trial court to apply the child support guidelines to the “earning potential of the obligor” if the court determines that the obligor is intentionally unemployed or underemployed. Id. § 154.066 (Vernon 2002).
To support a finding of intentional underemployment or unemployment, there must be evidence the obligor reduced his or her income with the intention of decreasing the child support payment. Garner v. Garner, 200 S.W.3d 303, 306-07 (Tex. App.—Dallas 2006, no pet.); In re E.A.S., 123 S.W.3d 565, 570 (Tex. App.—El Paso 2003, pet. denied). This intent may be inferred from such circumstances as the parent’s education, economic adversities, business reversals, business background, and earning potential. Id.
Here, it is undisputed that, after taking into account the trial court’s award of fifty percent of Sylvester’s retirement to Diona, Sylvester received a monthly net retirement benefit of $505 and a monthly net disability benefit of $875.[2] See Tex. Fam. Code Ann. § 154.062(b)(5) (Vernon 2002) (obligor’s net resources include “retirement” and “disability” benefits). Sylvester testified that he was employed for a period of time after retirement by Greyhound but had to quit because of physical problems associated with his disability.[3] According to Diona, he earned about $25,000 per year working for Greyhound.
Most of the dispute regarding Sylvester’s income or potential income relates to the cars he owns. Diona testified that Sylvester repairs and resells old cars. She estimated that he sold between thirty and forty cars in 2005 and made about $4,500 net per month doing so. She testified to one occasion in April 2005 when Sylvester showed her a briefcase containing $50,000 in cash which he had acquired from selling cars. According to her, he has cars in three states (Mississippi, Texas, and California) available to sell.
Sylvester disputed much of Diona’s testimony. He denies that he has ever been in the car selling business. He explained that he was keeping an unspecified number of cars which he has listed in his will and hopes to leave for their children. He testified that he has several friends who leave their cars on his property because he has plenty of space. He stated that he had never sold even fifteen cars in a single year. Sylvester estimated that if he did sell cars, he “probably could make $5,000 a year.” He testified that he had sold a few cars in the months preceding the final hearing[4] just to cover his monthly expenses.
In this final hearing, Diona testified that Sylvester has “earning potential” from work and the “car business” but “[h]e’s just choosing not to use it.” She also refers us to a portion of Sylvester’s testimony from which it could be inferred that he decided to stop selling cars after learning that his child support obligation would be based on the income he earned from sales. This testimony was provided when Diona’s counsel was cross-examining Sylvester about when he sold a 1970 Dodge Charger. “When it was [sic] in the process of being sold? 2005. When the court date -- we -- we first -- the decree. And then once I was told that I was going to have to pay $600 for child support and was based on the cars --.“
The trial court ordered Sylvester to pay $450 per month in child support for his two children.[5] We conclude that no abuse of discretion is shown for several reasons.
If the trial court took Sylvester at his word, he could make about $5,000 per year selling cars. This income, when combined with his retirement and disability income would support a monthly child support award of $449.[6] Sylvester also testified that he has several cars which he could sell but is not because he would like to give them to his children when he dies. See Tex. Fam. Code Ann. § 154.067(a) (Vernon 2002) (court may assign reasonable amount of deemed income to obligor’s assets which could be liquidated). Finally, if the court fully accepted Diona’s testimony regarding income Sylvester could realize from selling cars ($4,500 net per month), the testimony would support a monthly child support award of $1,470.[7]
Based on the parties’ circumstances and the testimony regarding whether Sylvester was not selling cars because he wanted to lower his child support obligation, we hold that the court did not abuse its discretion by finding that Sylvester is intentionally underemployed. See Garner, 200 S.W.3d at 307-08; E.A.S., 123 S.W.3d at 570-72. Accordingly, we overrule Sylvester’s second issue.
Conclusion
We have found error in the manner in which the trial court divided Sylvester’s military retirement benefits. These benefits were a primary factor in the court’s calculation of his child support obligation. Therefore, we reverse the judgment and remand this cause for further proceedings consistent with this opinion. See Wilson v. Wilson, 132 S.W.3d 533, 538-39 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (remanding child support determination and property division because child support determination can be “materially influenced” by property division).
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed November 14, 2007
[CV06]
[1] Finding of Fact No. 7 states, “Child support should be set at $450.00 per month beginning November 1, 2005 based on the earnings that Sylvester Anderson has the potential of earning if he were not intentionally underemployed and applying the Supreme Court guidelines.”
[2] The parties offered little documentary evidence to substantiate their testimony regarding their own and each other’s income. In a letter to the trial court, Sylvester’s counsel asked the court to base Sylvester’s child support obligation on these figures, which are consistent with Sylvester’s testimony regarding his monthly benefits. Therefore, we are treating these figures as net income.
[3] Sylvester testified that his disability came from unspecified “neck and pain injuries” which he sustained while lifting weights. He explained that he had been on a Marine Corps weightlifting team and was a five-time world champion.
[4] The court actually conducted four hearings in this matter: (1) an October 31, 2005 “Final Divorce Hearing”; (2) a February 8, 2006 hearing for entry of judgment; (3) a May 9, 2006 hearing on Sylvester’s motion for new trial; and (4) a June 6, 2006 “Final Hearing” in which the parties provided additional testimony regarding child support and visitation. Sylvester provided this particular testimony during the June 6 hearing.
[5] There were actually two divorce decrees in this case. In the first decree, the court ordered Sylvester to pay $600 per month in child support. However, the court granted Sylvester’s motion for new trial in part based on Sylvester’s contention that the child support award had been calculated based on 100% of Sylvester’s military retirement, even though the court had awarded 50% of his retirement to Diona.
[6] $5,000 per year is approximately $417 per month. $875 + $505 + $417 = $1,797. In this scenario, 25% of Sylvester’s actual and potential net monthly income of $1,797 would be $449. See Tex. Fam. Code Ann. § 154.125(b) (Vernon 2002) (child support for two children is 25% of monthly net resources).
[7] $875 + $505 + $4,500 = $5,880 x 0.25 = $1,470
Wednesday, November 14, 2007
The Perils of Violating Gender Roles: "Mr. Mom" factor considered by Austin Court of Appeals in reviewing equity of divorce property division
Austin Court of Appeals, in a memorandum opinon authored by Chief Justice Kenneth Law affirms division of marital estate in second appeal involving the same couple; finds no abuse of discretion in light of factors relevant to disproportionate division of marital estate and the evidence before the trial court. Husband-father earned less and had asked for disproportionate division in his favor.
Ronald J. Hewelt v. Virgina M. Hewelt, No. 03-04-00221-CV (Tex.App.- Nov. 14, 2007)(Opinion by Chief Justice Law)(property division and allocation of costs of prior appeal)
Excerpts from Chief Justice Ken Law's opinion:
Ronald argues that there is no evidence to support the trial court's finding that the parties have relatively equal earning capacities. (10) The evidence presented shows that, at various times throughout these trials and appeals, both Ronald and Virginia have been unemployed. When they were employed, Virginia's salary ranged from $120,000 per year to $162,000 per year. Ronald's salary was $84,000. Virginia has earned both bachelor and master degrees while Ronald has earned a technical degree. While, taken together, the evidence shows that Ronald never earned as much as Virginia during the marriage, it is not conclusive as to their relative earning capacities.
The trial court could have determined that both parties had the ability to earn substantial incomes, whether that income was $84,000 or $120,000 or even $162,000.
In addition, Ronald was a self-proclaimed "Mr. Mom" and may, therefore, have opted for a lower-paying, less-time consuming job during the marriage.
In addition, the security of both parties' jobs was subject to market fluctuations, and both Ronald and Virginia had been laid off at least once due to market conditions. Finally, even if the parties' earning capacities are not comparable, earning capacity is only one of the factors on which the trial court based its division, and the court could have found that other factors weighed more heavily in arriving at a just and right division.The trial court's role is to weigh the evidence, determine credibility, and divide the estate based on the court's findings. See Murff, 615 S.W.2d at 700. Having reviewed the evidence, indulging every reasonable presumption in favor of the proper exercise of discretion by the trial court in dividing community assets, we cannot say that the trial court abused its discretion in dividing the community property equally between the parties. See id. at 699. Ronald has failed to demonstrate that the trial court's substantially equal division of the property was manifestly unfair. See Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980). Accordingly, we conclude that the trial court's division of the marital estate was a proper exercise of its discretion.
Ronald J. Hewelt v. Virgina M. Hewelt, No. 03-04-00221-CV (Tex.App.- Nov. 14, 2007)(Opinion by Chief Justice Law)(property division and allocation of costs of prior appeal)
Excerpts from Chief Justice Ken Law's opinion:
Ronald argues that there is no evidence to support the trial court's finding that the parties have relatively equal earning capacities. (10) The evidence presented shows that, at various times throughout these trials and appeals, both Ronald and Virginia have been unemployed. When they were employed, Virginia's salary ranged from $120,000 per year to $162,000 per year. Ronald's salary was $84,000. Virginia has earned both bachelor and master degrees while Ronald has earned a technical degree. While, taken together, the evidence shows that Ronald never earned as much as Virginia during the marriage, it is not conclusive as to their relative earning capacities.
The trial court could have determined that both parties had the ability to earn substantial incomes, whether that income was $84,000 or $120,000 or even $162,000.
In addition, Ronald was a self-proclaimed "Mr. Mom" and may, therefore, have opted for a lower-paying, less-time consuming job during the marriage.
In addition, the security of both parties' jobs was subject to market fluctuations, and both Ronald and Virginia had been laid off at least once due to market conditions. Finally, even if the parties' earning capacities are not comparable, earning capacity is only one of the factors on which the trial court based its division, and the court could have found that other factors weighed more heavily in arriving at a just and right division.The trial court's role is to weigh the evidence, determine credibility, and divide the estate based on the court's findings. See Murff, 615 S.W.2d at 700. Having reviewed the evidence, indulging every reasonable presumption in favor of the proper exercise of discretion by the trial court in dividing community assets, we cannot say that the trial court abused its discretion in dividing the community property equally between the parties. See id. at 699. Ronald has failed to demonstrate that the trial court's substantially equal division of the property was manifestly unfair. See Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980). Accordingly, we conclude that the trial court's division of the marital estate was a proper exercise of its discretion.
Sunday, November 11, 2007
Mexican divorce terminates Texas suit and appeal
Marta Araceli Rodriguez v. Carlos Federico Aviles, No. 04-07-00164-CV (Tex.App.- San Antonio, Oct. 24, 2007)(Opinion by Chief Justice López)(foreign divorce)
Opinion by: Alma L. López, Chief Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: October 24, 2007
DISMISSED AS MOOT
Marta Araceli Rodriguez appeals the trial court's order dismissing her divorce petition. Carlos Federico Aviles filed a motion to dismiss this appeal for want of jurisdiction. The basis for the motion was the entry of a final divorce decree by a Mexican court. Under the facts presented, the entry of the divorce decree by the Mexican court renders this appeal moot; therefore, we dismiss the appeal.
Background
On August 19, 2005, Marta filed a petition of separation in Mexico, declaring that Mexico had been her domicile for the past seventeen years and stating her intention to file a divorce petition in Mexico. Instead, on September 1, 2005, Marta filed a divorce petition in Texas. On September 13, 2005, the Mexican court ordered Carlos to pay Marta alimony for her support. On September 22, 2005, the Mexican court accepted a dismissal filed by Marta; however, Carlos appealed the dismissal, and the separation proceeding was subsequently combined and handled by the same court handling the divorce petition filed by Carlos on September 28, 2005. On the same day Carlos filed the divorce petition, the Mexican court entered orders granting Carlos temporary custody of the minor children. On September 29, 2005, the parties entered into a Rule 11 agreement in the Texas proceeding in which they agreed that the minor children would reside with Marta. The Rule 11 agreement stated that Carlos was not consenting to the jurisdiction of the Texas courts.
In December of 2005, Carlos filed a Special Appearance, Plea to the Jurisdiction, Request for Court to Decline Jurisdiction, and Original Answer in the Texas suit. In December of 2006, the trial court dismissed the Texas suit after a hearing. Marta appealed the dismissal order.
On April 13, 2007, during the pendency of the appeal, the Mexican court entered a final divorce decree declaring the parties divorced and stating:
SEVENTH.- Regarding the right of Parental Authority over the minors RODRIGO and MARTHA CECILIA AVILÉS RODRIGUEZ, both parties will keep it, and regarding their care and custody, according to article 552 fraction II, section c) of the Civil Code of Coahuila, once the minors appear before the Court and state who of their parents they want to live with, in consequence a decision shall be made, and their maintenance shall be declared as well. (1)
Discussion
The mootness doctrine limits courts to deciding cases in which an actual controversy exists between the parties. Collier v. Grant, No. 04-05-00813-CV, 2006 WL 1004822, at *2 (Tex. App.--San Antonio Apr. 19, 2006, no pet.). In this case, Marta willingly participated in the Mexican divorce proceeding resulting in the rendition of a final divorce decree. Because the Mexican court resolved the controversy between the parties by entering a final divorce decree, this appeal is moot. Id.; see also Hunt v. Hunt, 453 S.W.2d 377, 378-79 (Tex. App.--Houston [14th Dist.] 1970, no pet.) (affirming dismissal of divorce case in Texas based on rendition of divorce decree by Mexican court).
Even if the appeal was not moot, we would affirm the dismissal order because the trial court did not abuse its discretion in dismissing the divorce petition based on inconvenient forum. See Dickerson v. Doyle, 170 S.W.3d 713, 718 (Tex. App.--El Paso 2005, no pet.) (noting abuse of discretion standard applies); see also Tex. Fam. Code Ann. § 152.207 (Vernon 2002) (listing factors trial court may consider in dismissing based on inconvenient forum).
Although Marta filed domestic violence charges against Carlos, the civil charges in Texas were dismissed, the criminal charges in Texas were expunged, and the Mexican court found the charges were unfounded. Carlos, Marta, and the children are Mexican citizens, and the parties contracted to be married under the separate property regime in Mexico. The parties frequently traveled between their house in Mexico and their house in Texas during their marriage using E-1 business visas that expire in 2009. Marta initially invoked the jurisdiction of the Mexican court when she filed the petition of separation, declaring that Mexico had been her domicile for seventeen years.
Under Mexican law, a domicile cannot be changed unless the parties agree. The separation proceeding was being handled by the same court handling Carlos's divorce petition. Marta participated in the Mexican proceeding without filing the equivalent of a special appearance. The Mexican court entered an order regarding the temporary custody of the children, and the Mexican government sent a letter rogatory or letter of request to the Bexar County District Courts requesting assistance in enforcing the Mexican court order. Finally, Marta's testimony at the hearing regarding her involvement in the various proceedings was contradictory. Given the evidence before the trial court, the trial court did not abuse its discretion in dismissing the underlying proceeding on the basis that Texas was an inconvenient forum.
Conclusion
Because the entry of the divorce decree by the Mexican court renders this appeal moot, the appeal is dismissed.
Alma L. López, Chief Justice
1. This is a direct quote from the translated version of the final divorce decree entered by the Mexican court.
Opinion by: Alma L. López, Chief Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: October 24, 2007
DISMISSED AS MOOT
Marta Araceli Rodriguez appeals the trial court's order dismissing her divorce petition. Carlos Federico Aviles filed a motion to dismiss this appeal for want of jurisdiction. The basis for the motion was the entry of a final divorce decree by a Mexican court. Under the facts presented, the entry of the divorce decree by the Mexican court renders this appeal moot; therefore, we dismiss the appeal.
Background
On August 19, 2005, Marta filed a petition of separation in Mexico, declaring that Mexico had been her domicile for the past seventeen years and stating her intention to file a divorce petition in Mexico. Instead, on September 1, 2005, Marta filed a divorce petition in Texas. On September 13, 2005, the Mexican court ordered Carlos to pay Marta alimony for her support. On September 22, 2005, the Mexican court accepted a dismissal filed by Marta; however, Carlos appealed the dismissal, and the separation proceeding was subsequently combined and handled by the same court handling the divorce petition filed by Carlos on September 28, 2005. On the same day Carlos filed the divorce petition, the Mexican court entered orders granting Carlos temporary custody of the minor children. On September 29, 2005, the parties entered into a Rule 11 agreement in the Texas proceeding in which they agreed that the minor children would reside with Marta. The Rule 11 agreement stated that Carlos was not consenting to the jurisdiction of the Texas courts.
In December of 2005, Carlos filed a Special Appearance, Plea to the Jurisdiction, Request for Court to Decline Jurisdiction, and Original Answer in the Texas suit. In December of 2006, the trial court dismissed the Texas suit after a hearing. Marta appealed the dismissal order.
On April 13, 2007, during the pendency of the appeal, the Mexican court entered a final divorce decree declaring the parties divorced and stating:
SEVENTH.- Regarding the right of Parental Authority over the minors RODRIGO and MARTHA CECILIA AVILÉS RODRIGUEZ, both parties will keep it, and regarding their care and custody, according to article 552 fraction II, section c) of the Civil Code of Coahuila, once the minors appear before the Court and state who of their parents they want to live with, in consequence a decision shall be made, and their maintenance shall be declared as well. (1)
Discussion
The mootness doctrine limits courts to deciding cases in which an actual controversy exists between the parties. Collier v. Grant, No. 04-05-00813-CV, 2006 WL 1004822, at *2 (Tex. App.--San Antonio Apr. 19, 2006, no pet.). In this case, Marta willingly participated in the Mexican divorce proceeding resulting in the rendition of a final divorce decree. Because the Mexican court resolved the controversy between the parties by entering a final divorce decree, this appeal is moot. Id.; see also Hunt v. Hunt, 453 S.W.2d 377, 378-79 (Tex. App.--Houston [14th Dist.] 1970, no pet.) (affirming dismissal of divorce case in Texas based on rendition of divorce decree by Mexican court).
Even if the appeal was not moot, we would affirm the dismissal order because the trial court did not abuse its discretion in dismissing the divorce petition based on inconvenient forum. See Dickerson v. Doyle, 170 S.W.3d 713, 718 (Tex. App.--El Paso 2005, no pet.) (noting abuse of discretion standard applies); see also Tex. Fam. Code Ann. § 152.207 (Vernon 2002) (listing factors trial court may consider in dismissing based on inconvenient forum).
Although Marta filed domestic violence charges against Carlos, the civil charges in Texas were dismissed, the criminal charges in Texas were expunged, and the Mexican court found the charges were unfounded. Carlos, Marta, and the children are Mexican citizens, and the parties contracted to be married under the separate property regime in Mexico. The parties frequently traveled between their house in Mexico and their house in Texas during their marriage using E-1 business visas that expire in 2009. Marta initially invoked the jurisdiction of the Mexican court when she filed the petition of separation, declaring that Mexico had been her domicile for seventeen years.
Under Mexican law, a domicile cannot be changed unless the parties agree. The separation proceeding was being handled by the same court handling Carlos's divorce petition. Marta participated in the Mexican proceeding without filing the equivalent of a special appearance. The Mexican court entered an order regarding the temporary custody of the children, and the Mexican government sent a letter rogatory or letter of request to the Bexar County District Courts requesting assistance in enforcing the Mexican court order. Finally, Marta's testimony at the hearing regarding her involvement in the various proceedings was contradictory. Given the evidence before the trial court, the trial court did not abuse its discretion in dismissing the underlying proceeding on the basis that Texas was an inconvenient forum.
Conclusion
Because the entry of the divorce decree by the Mexican court renders this appeal moot, the appeal is dismissed.
Alma L. López, Chief Justice
1. This is a direct quote from the translated version of the final divorce decree entered by the Mexican court.
Nonparent Custody Affirmed
San Antonio court of appeals affirms award of custody to nonparent over natural father. Mother had died. Challenge to standing fails. Parental preference rebutted.
In the Interest of N.B.B. and J.B.B., Children, No. 04-06-00342-CV (Tex.App.- San Antonio , Oct. 31, 2007)(Opinion by Justice Angelini)(nonparents)(Before Chief Justice López, Justices Angelini and Marion)
Appeal from 81st District Court of Atascosa County
Opinion by: Karen Angelini, Justice
Sitting: Alma L. López, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: October 31, 2007
AFFIRMED
This an appeal from an order in a suit affecting the parent-child relationship. At the close of the non-jury trial, the trial court entered an order appointing Shannon W. and John B. joint managing conservators of the children, N.B.B. and J.B.B., with Shannon having the right to determine the primary residence of the children and John having standard visitation. In three issues on appeal, John contends Shannon, a non-parent, lacked standing to participate in this suit; the evidence was legally and factually insufficient to support certain findings of fact and conclusions of law; and the evidence was legally and factually insufficient to rebut the parental presumption set forth in section 153.131 of the Texas Family Code. We affirm the trial court's order.
Factual and Procedural Background
John and Sharon B., the mother of N.B.B. and J.B.B., began living together in the early 1990s in Florida. Although they never married, they had two children, N.B.B. and J.B.B. Sharon and John eventually separated, and sometime between 2000 and 2002 Sharon moved to Texas with the children.
In early 2005, Sharon was diagnosed with terminal cancer. About a month before her death, Sharon placed J.B.B., who has Downs Syndrome, in a residential facility called The Willows. At the same time, Sharon's daughter, N.B.B., began living with Sharon's friend and neighbor, Shannon W.
Sharon died on September 22, 2005. When John learned that Sharon had passed away, he tried to take his children with him to Florida, but Shannon refused to allow him to do so. John filed an original petition in a suit affecting the parent-child relationship. Shannon then brought a counter-petition. After a temporary orders hearing, the trial judge essentially maintained the status quo, appointing Shannon as temporary managing conservator of the children and John as temporary possessory conservator of the children. Upon a final hearing, the trial judge appointed Shannon and John as joint managing conservators, granting Shannon the right to determine the children's residence and John standard visitation. The trial court then entered findings of fact and conclusions of law. John appeals the trial court's order.
The Evidence
The evidence in this case was adduced at two hearings: the temporary orders hearing held on October 18, 2005, and the trial on the merits held on April 27, 2006.
John, the father of N.B.B. and J.B.B., testified that he and Sharon began dating in 1993 in Florida. When they found out she was pregnant, they began living together. According to John, he lived with Sharon until about 2001 or 2002, when they separated. Sharon then took the children and moved to Texas, but she and John continued to be good friends. In 2003, Sharon took the children to Florida to visit John's family. In 2004, N.B.B. visited the family in Florida by herself.
The first time John came to Texas was in May 2005,when Sharon was seriously ill. Then, in the months of June and July 2005, N.B.B. and J.B.B. visited John in Florida. According to John, while the children were with him, his girlfriend, Sandra, helped him take care of the children while he was working. In late July 2005, the children returned to Texas.
John testified that in August 2005 he received a phone call from Sharon's doctor, Dr. Mario Perez, asking him to help Sharon with J.B.B. John then spoke to Sharon who told him that because of her illness, J.B.B. was too hard for her to handle. John however refused to take J.B.B. According to John, he did so because he and Sharon had always agreed not to separate the children. When he found out Sharon had passed away, he called Shannon and asked if he could come get his children. She refused.
John testified that he has a house in Florida for his children to live in with him. He also has a large extended family living near him. Although he is aware that J.B.B. has been placed in a residential care facility, he does not plan to place J.B.B. in one in Florida. J.B.B. needs special attention because he uses diapers and does not know how to clean himself after he goes to the bathroom. It is John's intent for both children to live with him. He plans to place both N.B.B. and J.B.B. in school, with J.B.B. attending a special Olympics program after school. According to John, he will get professional help for J.B.B. if necessary. And, according to John, he does not plan for N.B.B. to be J.B.B.'s caretaker. His girlfriend, Sandra, will help him with the children. John testified that he has never hit N.B.B. or J.B.B.
John has a total of six children by four different mothers. The children, other than N.B.B. and J.B.B., are ages three, thirteen, seventeen, and nineteen. The mothers of the two youngest children have filed suit against him to collect child support. He has been ordered to pay child support, but is behind on his payments. He was never ordered to pay child support for N.B.B. and J.B.B. but did send some money to Sharon for their support. In 1991, John was convicted of driving under the influence and eventually had his license revoked for driving with a suspended license. John works at a family-owned construction company and is paid $500 a week; however, child support for his two youngest children is deducted from that amount.
Mauro B., John's brother, testified that in early June 2005, Sharon wrote a letter appointing him as guardian of her children. Mauro believes she did this because he and his children had been very close to N.B.B. and J.B.B. After Sharon moved to Texas, Mauro sent her some money on a couple of occasions. According to Mauro, his brother, John, is a very loving father. But, Mauro admitted the children have not lived with John since 2002 or 2003 when Sharon left Florida. Mauro also testified that John worked for him in the past and was a stable employee. Mauro has never seen John hit either N.B.B. or J.B.B.
Michael B., also John's brother, testified that he owns his own business in Florida, and John is his employee. According to Michael, John is a good employee and makes about $2,000 a month. When N.B.B. and J.B.B. lived in Florida, they spent time playing with Michael's three children. He has never seen John discipline N.B.B. or J.B.B.
John's father also testified. John's father is retired and lives in Florida with his wife. According to him, his son John is a very good father, and if John gains custody of N.B.B. and J.B.B., he and his wife will help take care of them. He has never seen John hit any of his children. John's girlfriend, Sandra, loves the children and treats them very well. John's father further testified that Sharon moved to Texas around 1999 to 2000.
Dr. Mario Perez was Sharon's treating doctor. According to Dr. Perez, Sharon was diagnosed with terminal cancer around March 2005. Around August 2005, Dr. Perez had a telephone conversation with John concerning Sharon's condition. Because J.B.B. was becoming difficult to handle, Dr. Perez was trying to explore ways to make this difficult time with J.B.B. a little easier. According to Dr. Perez, although John obviously understood what Dr. Perez was trying to tell him, he gave no feedback one way or the other.
Charlotte Taber is the licensed counselor ordered by the court to conduct a social study in this case. She testified that she visited both Shannon's home and John's home. She also observed John with his children in her office and in the park. According to Taber, John interacted well with the children; they seemed very natural. She also observed John's nephews interact with him in Florida. According to Taber, they jumped in his arms and clung to him. She also testified that in his home John has numerous pictures of his nephews and pictures of J.B.B. and N.B.B. John's house is clean, but is in the process of being reconstructed. There is a bedroom for each of the children. John seems to really want to be a father in every way. He has a strong extended family. Taber believes John will be able to nurture his son, J.B.B.
Taber also testified that the staff at The Willows reported to her that J.B.B.'s symptoms have "deteriorated" quite a bit since he has been there; Taber later admitted, however, that when describing J.B.B.'s condition the staff had not used the word "deteriorated." According to Taber, the optimal placement for J.B.B. is in a residential home. Although neither John nor his girlfriend has received training for taking care of J.B.B., Taber testified that John's plan was for his girlfriend to care for J.B.B. when he was not there and to receive help from other family members. Taber testified that John has been unable to fulfill his child support responsibilities with his children; that he has not seen N.B.B. or J.B.B. much in the past four or five years; and that he has not provided child support.
Taber also testified that the children have known Shannon for four years. However, according to Taber, the biological father carries more weight than someone who is not related. Taber also viewed a video of Sharon, N.B.B. and J.B.B.'s mother, in which Sharon indicated she wanted Shannon to take care of her children. According to Taber, N.B.B. also indicated she wanted to live with Shannon. However, when Taber asked N.B.B. what would happen if the judge said she had to live with her father, N.B.B. responded that she would be fine.
Shannon testified that after Sharon moved to her neighborhood in July 2002, they became very good friends. According to Shannon, during the period of time that they were friends, Sharon became like a second mom to her. Shannon saw Sharon and her two children every day. At least once or twice a month, Shannon took care of the children. They shared holiday events, including Christmas and Thanksgiving dinners. During Sharon's illness, several family members and friends, including Shannon, took care of Sharon and her children. On September 1, 2005, hospice began caring for Sharon, and N.B.B. went to live with Shannon. At the same time, Sharon placed J.B.B. at The Willows. Shannon testified that J.B.B.'s condition has improved considerably since he moved to The Willows. His weight has decreased to a healthy weight, and his vocabulary and writing skills have increased. He seems content, happy, and well-behaved. Shannon testified that she visits J.B.B. about twice a month and that she has taken him home with her on weekends. According to Shannon, his relationship with N.B.B. has improved. Shannon does not believe that an average family would be able to take care of J.B.B. because he needs 24/7 supervision. And, although she would like to have J.B.B. stay with her in her home, Shannon realizes she is not trained to deal with J.B.B.'s needs. N.B.B. has told Shannon that, although she misses her brother, she does not miss having to take care of J.B.B., cleaning him up when he soils himself, or fixing him food and drink. According to Shannon, N.B.B. is now enjoying being a little girl. Shannon testified that N.B.B. is doing very well in school and is getting involved in things she was never involved with before. She is in an anti-drug organization at school; she competed in a UIL reading competition; she is playing league softball; and she is considering being a cheerleader. N.B.B. was not able to experience these things when her mother was alive because of J.B.B. Because J.B.B. needed 24/7 care, Sharon could not easily leave the house. J.B.B. had mood swings, and sometimes Sharon had difficulty handling his temper tantrums. If they went to a restaurant, J.B.B. would throw himself down on the floor. He had aggressive spurts quite often when he did not get what he wanted. N.B.B. had to do a lot for her brother because Sharon was tired, especially toward the end of her life. As a result, N.B.B. had a lot of resentment against J.B.B. According to Shannon, shortly before she died, Sharon made a will in which she named Shannon guardian of the children.
Shannon testified that she wants custody of the children. According to Shannon, it was Sharon's wish that she have them, and John has not had enough contact with them to be able to care for them, especially J.B.B. Shannon is district operations manager of twelve auto parts stores in San Antonio and earns about $40,000 a year.
Shannon testified that when N.B.B. and J.B.B. returned from their visit with John at the end of July 2005, N.B.B. was very angry and had a sour attitude. N.B.B. said that although she had a wonderful time in Florida, she had to "clean up" J.B.B. and had to share a room with him.
Ophelia Stephens, a Qualified Mental Retardation Professional, is a caseworker at The Willows where J.B.B. is in residential treatment. In his initial evaluation, it was noted that J.B.B. had a history of being stubborn and noncompliant. After being admitted, he had episodes of physical aggression, self-interest behaviors, temper tantrums, and noncompliance. He also left his bedroom by going out of a window. And, there has been an increase in his hitting and temper tantrum behaviors. Thus, he has been prescribed Zoloft. However, J.B.B. has improved in his ability to communicate. He is working on toileting skills, and his hygiene has improved. According to Stephens, the ideal situation for a child like J.B.B. is to be out of a large facility and placed at home with his family, a foster home, or a group home. However, his caregivers would need to be trained to handle his behavior. Child care, crisis intervention, and counseling would be needed.
Leslie Brown, a counselor at Poteet Independent School District, testified that she has counseled N.B.B. They started talking when Sharon became ill and talked some after Sharon passed away. N.B.B. has expressed anxiety over where she is going to live. She is doing well where she is and would like to stay there. She is well adjusted and has good grades and attendance at school. According to Brown, Shannon has been very supportive of N.B.B. in school.
The trial judge interviewed N.B.B. in chambers on the record. N.B.B. had written some items on a piece of paper that she presented to the judge. N.B.B. told the judge she would like to stay and live with Shannon. She said she loves her father, but he has a bad temper. According to N.B.B., he raises his voice, and she remembers that when she was little he would throw things. N.B.B. stated that he sometimes hit her mother. And, according to N.B.B., this summer her father hit her brother on the leg when he messed in his pants because of his disability. N.B.B. does not feel like she can connect with her father. She is afraid he will hit her the way he used to her hit her mom. She is afraid of him. According to N.B.B., when she was a little girl, her father hit her with his hand and busted her lip. N.B.B. further stated that her brother is doing well at The Willows, and she is doing well in school.
N.B.B. likes her father's girlfriend, Sandra. Sandra is good with J.B.B. However, according to N.B.B. when she and her brother visited her father in Florida, N.B.B. sometimes had to help Sandra with J.B.B.
Standard of Review
In family law cases such as this, we review the trial court's rulings under an abuse of discretion standard. Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App.--San Antonio 2007, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably. Id. Under an abuse of discretion standard, challenges to the legal and factual sufficiency of the evidence are not independent grounds of error; rather, they are simply factors in assessing whether the trial court abused its discretion. Id. When an appellant challenges the legal and factual sufficiency of the evidence in cases where the proper standard is abuse of discretion, we engage in a two-prong analysis: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. Id. In determining whether the trial court had sufficient information, we use the traditional standard of review for legal and factual sufficiency. Id.
Discussion
In his first issue on appeal, John argues that Shannon, a non-relative, has no standing under section 102.003 of the Texas Family Code to participate in this suit affecting the parent-child relationship. It is apparent, however, that the trial court found that Shannon had standing under a different section of the Texas Family Code: section 102.004(b). That section provides that
the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.
Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2006) (emphasis added). Thus, in order for Shannon to have standing as an "other person" under this section, there must be evidence that (1) she had substantial past contact with the children; and (2) appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. See id.
The evidence shows that Shannon indeed had substantial past contact with both N.B.B. and J.B.B. for a period of about four years before Sharon's death and before John filed suit. Shannon testified that she was good friends with Sharon while they were neighbors, that Sharon had become like a second mom to her, and that she saw the children every day. Shannon often took care of the children and spent holidays with the children and Sharon. Thus, there was legally and factually sufficient evidence that Shannon had substantial past contact with the children.
Furthermore, the evidence was legally and factually sufficient to support the trial court's finding that appointing John sole managing conservator would significantly impair the children's physical health or emotional development. Our discussion of this issue is applicable not only to John's first issue on appeal, which challenges Shannon's standing, but also to John's third issue on appeal in which he argues that the evidence was legally and factually insufficient to rebut the parental presumption required by section 153.131 of the Texas Family Code. The parental presumption section provides that
unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
Tex. Fam. Code Ann. § 153.131(a) (Vernon 2002). Thus, both John's standing issue and his parental presumption issue depend upon whether there was sufficient evidence to support a finding that appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. Further, in John's second issue on appeal, he challenges some, but not all, of the trial court's findings of fact and conclusions of law. The trial court's findings and conclusions relate, for the most part, to this same issue of whether the appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. Therefore, we will combine our discussion of all three of John's issues on appeal.
John argues that there is no evidence that he was abusive to his children or would likely cause physical and/or emotional harm to his children in the future. The evidence shows otherwise. After John and Sharon separated and Sharon moved to Texas, John never visited the children in Texas until May 2005 when Sharon was very ill. He saw J.B.B. on only two other occasions and N.B.B. on three other occasions when they came to Florida to visit him. Because J.B.B. needs constant care, while John went to work, his girlfriend and N.B.B. cared for J.B.B. Several weeks before Sharon died, Sharon and her doctor asked John to take J.B.B. to Florida, but he refused because he did not want to separate the children. This resulted in Sharon having to place J.B.B. in a residential treatment center, The Willows, because he was too hard for her to handle as her illness worsened. N.B.B. had to go live with Shannon.
John's plans for the children include having them come to Florida to live with him and enlisting the help of his family and girlfriend. He plans to place both children in public school and J.B.B. in a special Olympics program after school. Although it is necessary for J.B.B.'s caretaker to have special training, John has not received that training.
In addition to N.B.B. and J.B.B., John has four other children, all by different mothers. He did not support his children until the court required him to do so, and he is behind on child support payments. John makes $500 a week working at a family-owned business, but child support for his other children is deducted from that amount.
When N.B.B. and J.B.B. visited John in Florida in the summer of 2005, N.B.B. returned from the visit very angry because she had to take care of J.B.B. while they were in Florida. N.B.B. also had to help her mother take care of J.B.B., especially toward the end of her mother's life, which caused her to resent him. Now that N.B.B. is not having to help care for J.B.B., she is doing very well in school, is participating in activities, and is enjoying being a little girl.
N.B.B. testified that, although she loves her father, he has a bad temper, raises his voice, and throws things. She remembers that he sometimes hit her mother. This past summer, he hit her brother, J.B.B., because J.B.B. soiled his pants. And, according to N.B.B., when she was little, he hit her once on her lip. N.B.B. is afraid of her father and fears that he will hit her the way he used to hit her mom.
Given this evidence, the trial judge could have easily found that appointing John as joint managing conservator with the right to determine place of primary residence would significantly impair both children's physical health or emotional development. John had had little contact with his children since they moved to Texas. He apparently had relied in the past and intended to rely in the future on N.B.B., his girlfriend, and other family members to care for J.B.B. He seemed to have little understanding of J.B.B.'s constant and substantial needs. His past behavior showed an unwillingness to support his other children as well as N.B.B. and J.B.B. And perhaps most compelling, N.B.B. testified to his violent temperament that caused her to be fearful of him. Thus, the trial court did not err in finding that appointment of John as joint managing conservator with the right to determine place of primary residence would significantly impair the children's physical health or emotional development.
We note that John specifically challenges Findings of Fact Nos. 7, 11, 13, 14, 15, 16, 41, and 42, and Conclusions of Law Nos. 3, 5, 6, 7, and 8.
In Finding of Fact No. 7, the trial court found that the children had not lived in the same home as their father since sometime in 2000. Although the testimony is conflicting and somewhat confusing, there is sufficient evidence to support this finding. John's father testified that Sharon and the children moved to Texas around 1999 to 2000. John testified that Sharon and the children moved to Texas sometime in 2001 or 2002.
In Finding of Fact No. 11, the trial court found that Sharon and her doctor asked John to take J.B.B. in the spring of 2005 and John refused. The evidence shows that Sharon's doctor spoke to John to explore ways to make Sharon's difficulty in handling J.B.B. easier. According to the doctor, John understood what the doctor was trying to tell him, but gave no feedback. According to John, he received a phone call from Sharon's doctor who asked him to help Sharon with J.B.B. John then spoke to Sharon who told him J.B.B. was too hard for her to handle with her illness. John's response to Sharon's request for help was that he and Sharon had always agreed not to separate the children, so he refused to take J.B.B. Thus, although John explained why he refused to take J.B.B. when Sharon and her doctor asked for help, the evidence is nevertheless sufficient to support the trial court's finding.
In Finding of Fact No. 13, the trial court found that N.B.B. saw her father hit her brother during the visit in the summer of 2005. John points out that several of his family members testified that they had never seen John hit J.B.B. And, N.B.B. had stated in the past that John had not hit J.B.B. However, N.B.B. did tell the judge during the hearing that during the summer of 2005 she had seen John hit J.B.B. because J.B.B. had soiled his pants. Thus, although the evidence was conflicting, it was for the trial judge to assess the credibility of the witnesses. Therefore, the evidence was sufficient to support Finding of Fact No. 13.
In Finding of Fact No. 14, the trial court found that in July 2005, Sharon made a video statement in which she indicated John was too unstable to have possession of the children and that she wanted Shannon and Shannon's mother to have custody of the children. In Finding of Fact No. 15, the trial court found that Sharon indicated in the videotape that one reason John was unstable was due to his consumption of alcohol. In Finding of Fact No. 16, the trial court found that Sharon indicated in the videotape that N.B.B. told her that she wanted to stay with Shannon and that N.B.B. did not feel "safe" with John. John challenges Findings of Fact Nos. 14, 15, and 16 for the reason that, although the trial judge watched the videotape, it was never admitted into evidence and therefore is inadmissible hearsay. However, the contents of the videotape came in through the testimony of Taber, the social study investigator, Shannon, and N.B.B. Also, there was testimony from John that he had been convicted of DUI in 1991 and had had his driver's license suspended numerous times. Further, there was no hearsay objection during the hearings; therefore any hearsay objection was waived. Tex. R. Evid. 802 ("Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay").
In Finding of Fact No. 41, the trial court found that N.B.B. made it very clear to the court that she did not want to live with her father. John points out that Taber, the social study investigator, testified that N.B.B. told her she would be fine if she had to live with her dad. And John testified that he and N.B.B. have a great time together. Nonetheless, N.B.B. made statements to the trial judge that she did not want to live with her father, that he has hit her in the past, that he hit her brother, that he hit her mom, and that she is afraid of him. The evidence is sufficient to support the trial court's finding.
In Finding of Fact No. 42, the trial court made a finding that N.B.B. had made some statements that if she were forced to live with her father, she would run away. This evidence came from Taber who reported that Shannon said she feared N.B.B. would run away if she had to live with her father. Again, any hearsay objection to Taber's testimony has been waived. See Tex. R. Evid. 802.
Further, we note that although John has challenged certain trial court findings, he has not challenged the vast majority of the court's findings. Unchallenged findings are binding on the appellate court unless the contrary is established as a matter of law or unless no evidence supports the finding. Davey v. Shaw, 225 S.W.3d 843, 853 (Tex. App.--Dallas 2007, no pet.).
The findings of the trial court that John has failed to challenge can be summarized as follows:
1. The children the subject of this suit are N.B.B. and J.B.B.
2. Sharon and John are the biological parents of the children.
3. Sharon died on September 22, 2005.
4. J.B.B. is moderately to severely mentally retarded.
5. The children lived continuously with Sharon from birth until one month before her death when N.B.B. began living with Shannon and J.B.B. began living at The Willows.
6. Sharon lived in Florida with the children until July 3, 2002, when she moved to Texas.
7. Sharon and John did not live together for approximately one year prior to her move to Texas.
8. From the time Sharon moved to Texas until her death, John had three visits with the children.
9. When N.B.B. and J.B.B. returned from the summer 2005 visit with John, N.B.B. had changed from an outgoing friendly girl to a quiet, wary one, and she told Shannon that she had been responsible for her brother's care while they were in Florida.
10. Sharon placed J.B.B. in The Willows and N.B.B. began living with Shannon shortly before Sharon died.
11. J.B.B.'s behavior became increasingly difficult to control as he became older and larger.
12. Due to J.B.B.'s mental retardation, he was generally nonverbal, his hygiene was extremely poor, and he was not toilet trained and wore diapers.
13. J.B.B. did not function well in the special education classes offered by the public school.
14. J.B.B. often had temper tantrums.
15. Because all of Sharon's energy went to J.B.B., N.B.B. was resentful of her brother and was unable to participate in normal childhood activities outside of the home.
16. J.B.B. requires 24-hour trained, specialized care.
17. The optimum placement for J.B.B. would be in a home setting with persons who have received proper education and training.
18. John's plan was to remove J.B.B. from The Willows and have him at home, put him in public school, and sign him up for a special Olympics program. However, John had made no significant attempts to find out about the special education programs his local school had to offer or what outside resources were available to him for J.B.B.
19. John appeared to have no realistic idea what level of care J.B.B. actually required, and he was simply intending to rely on his girlfriend and his mother to care for J.B.B. while he was working.
20. John has six children with four different mothers. His two oldest children live in Brazil with their mother.
21. John has paid very little, if any, child support for N.B.B. and J.B.B.
22. John did not pay child support for his other two children until court-ordered to do so. John has some contact with his youngest child, but he does not see his 13-year old because of some unspecified problem with that child's mother.
23. John works for his brother with a gross monthly income of $2,000. He is buying his home from his brother who appears to allow him to make payments at his convenience.
24. John's current girlfriend has been with him for several years and does not work outside the home. At the time of trial, John's girlfriend had left the country to be with her ailing mother and had not indicated when she would return.
25. John testified that he had about $300.00 per month left to support himself and anyone living with him after paying his house payment. John drives a company vehicle as his personal vehicle.
26. Although J.B.B. continued to have behavioral problems at The Willows, he had made some improvements.
27. Neither John nor Shannon had obtained training in caring for J.B.B.
28. N.B.B. had made excellent grades in school and had exemplary behavior. N.B.B.'s resentment of J.B.B. had virtually disappeared.
29. N.B.B. and Shannon visit J.B.B. about once a week and take him home about once a month.
30. N.B.B. has been able to re-establish a relationship with her adult half brother who lives in San Antonio.
After reviewing the record, we find these unchallenged findings are supported by the evidence and, therefore, are binding on this court. See Davey, 225 S.W.3d at 853
In addition to challenging certain findings of fact, John also challenges Conclusions of Law Nos. 3, 5, 6, 7, and 8. In Conclusion of Law No. 3, the trial court found Shannon had standing under the Texas Family Code as a person with substantial contact. As previously discussed, the evidence shows that Shannon did have substantial contact with the children.
In Conclusion of Law No. 5, the trial court found that the statutory presumption that John should be appointed as sole managing conservator or joint managing conservator with the right to determine primary residence has been rebutted. In Conclusion of Law No. 6, the trial court found that the presumption is rebutted because the appointment of John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair both children's emotional development. In Conclusion of Law No. 7, the trial court found that the presumption is rebutted because appointment of John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair J.B.B.'s physical development. And, in Conclusion of Law No. 8, the trial court found that because of Conclusions of Law Nos. 6 and 7, it is not in either child's best interest that John be appointed sole managing conservator or joint managing conservator with the right to determine the primary residence. All of these challenged conclusions of law relate to whether appointing John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair the children's emotional and physical development. As previously discussed, the evidence was sufficient to support such a finding, and the trial court did not abuse its discretion.
Therefore, we overrule all three of John's issues on appeal and affirm the trial court's order.
Karen Angelini, Justice
In the Interest of N.B.B. and J.B.B., Children, No. 04-06-00342-CV (Tex.App.- San Antonio , Oct. 31, 2007)(Opinion by Justice Angelini)(nonparents)(Before Chief Justice López, Justices Angelini and Marion)
Appeal from 81st District Court of Atascosa County
Opinion by: Karen Angelini, Justice
Sitting: Alma L. López, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: October 31, 2007
AFFIRMED
This an appeal from an order in a suit affecting the parent-child relationship. At the close of the non-jury trial, the trial court entered an order appointing Shannon W. and John B. joint managing conservators of the children, N.B.B. and J.B.B., with Shannon having the right to determine the primary residence of the children and John having standard visitation. In three issues on appeal, John contends Shannon, a non-parent, lacked standing to participate in this suit; the evidence was legally and factually insufficient to support certain findings of fact and conclusions of law; and the evidence was legally and factually insufficient to rebut the parental presumption set forth in section 153.131 of the Texas Family Code. We affirm the trial court's order.
Factual and Procedural Background
John and Sharon B., the mother of N.B.B. and J.B.B., began living together in the early 1990s in Florida. Although they never married, they had two children, N.B.B. and J.B.B. Sharon and John eventually separated, and sometime between 2000 and 2002 Sharon moved to Texas with the children.
In early 2005, Sharon was diagnosed with terminal cancer. About a month before her death, Sharon placed J.B.B., who has Downs Syndrome, in a residential facility called The Willows. At the same time, Sharon's daughter, N.B.B., began living with Sharon's friend and neighbor, Shannon W.
Sharon died on September 22, 2005. When John learned that Sharon had passed away, he tried to take his children with him to Florida, but Shannon refused to allow him to do so. John filed an original petition in a suit affecting the parent-child relationship. Shannon then brought a counter-petition. After a temporary orders hearing, the trial judge essentially maintained the status quo, appointing Shannon as temporary managing conservator of the children and John as temporary possessory conservator of the children. Upon a final hearing, the trial judge appointed Shannon and John as joint managing conservators, granting Shannon the right to determine the children's residence and John standard visitation. The trial court then entered findings of fact and conclusions of law. John appeals the trial court's order.
The Evidence
The evidence in this case was adduced at two hearings: the temporary orders hearing held on October 18, 2005, and the trial on the merits held on April 27, 2006.
John, the father of N.B.B. and J.B.B., testified that he and Sharon began dating in 1993 in Florida. When they found out she was pregnant, they began living together. According to John, he lived with Sharon until about 2001 or 2002, when they separated. Sharon then took the children and moved to Texas, but she and John continued to be good friends. In 2003, Sharon took the children to Florida to visit John's family. In 2004, N.B.B. visited the family in Florida by herself.
The first time John came to Texas was in May 2005,when Sharon was seriously ill. Then, in the months of June and July 2005, N.B.B. and J.B.B. visited John in Florida. According to John, while the children were with him, his girlfriend, Sandra, helped him take care of the children while he was working. In late July 2005, the children returned to Texas.
John testified that in August 2005 he received a phone call from Sharon's doctor, Dr. Mario Perez, asking him to help Sharon with J.B.B. John then spoke to Sharon who told him that because of her illness, J.B.B. was too hard for her to handle. John however refused to take J.B.B. According to John, he did so because he and Sharon had always agreed not to separate the children. When he found out Sharon had passed away, he called Shannon and asked if he could come get his children. She refused.
John testified that he has a house in Florida for his children to live in with him. He also has a large extended family living near him. Although he is aware that J.B.B. has been placed in a residential care facility, he does not plan to place J.B.B. in one in Florida. J.B.B. needs special attention because he uses diapers and does not know how to clean himself after he goes to the bathroom. It is John's intent for both children to live with him. He plans to place both N.B.B. and J.B.B. in school, with J.B.B. attending a special Olympics program after school. According to John, he will get professional help for J.B.B. if necessary. And, according to John, he does not plan for N.B.B. to be J.B.B.'s caretaker. His girlfriend, Sandra, will help him with the children. John testified that he has never hit N.B.B. or J.B.B.
John has a total of six children by four different mothers. The children, other than N.B.B. and J.B.B., are ages three, thirteen, seventeen, and nineteen. The mothers of the two youngest children have filed suit against him to collect child support. He has been ordered to pay child support, but is behind on his payments. He was never ordered to pay child support for N.B.B. and J.B.B. but did send some money to Sharon for their support. In 1991, John was convicted of driving under the influence and eventually had his license revoked for driving with a suspended license. John works at a family-owned construction company and is paid $500 a week; however, child support for his two youngest children is deducted from that amount.
Mauro B., John's brother, testified that in early June 2005, Sharon wrote a letter appointing him as guardian of her children. Mauro believes she did this because he and his children had been very close to N.B.B. and J.B.B. After Sharon moved to Texas, Mauro sent her some money on a couple of occasions. According to Mauro, his brother, John, is a very loving father. But, Mauro admitted the children have not lived with John since 2002 or 2003 when Sharon left Florida. Mauro also testified that John worked for him in the past and was a stable employee. Mauro has never seen John hit either N.B.B. or J.B.B.
Michael B., also John's brother, testified that he owns his own business in Florida, and John is his employee. According to Michael, John is a good employee and makes about $2,000 a month. When N.B.B. and J.B.B. lived in Florida, they spent time playing with Michael's three children. He has never seen John discipline N.B.B. or J.B.B.
John's father also testified. John's father is retired and lives in Florida with his wife. According to him, his son John is a very good father, and if John gains custody of N.B.B. and J.B.B., he and his wife will help take care of them. He has never seen John hit any of his children. John's girlfriend, Sandra, loves the children and treats them very well. John's father further testified that Sharon moved to Texas around 1999 to 2000.
Dr. Mario Perez was Sharon's treating doctor. According to Dr. Perez, Sharon was diagnosed with terminal cancer around March 2005. Around August 2005, Dr. Perez had a telephone conversation with John concerning Sharon's condition. Because J.B.B. was becoming difficult to handle, Dr. Perez was trying to explore ways to make this difficult time with J.B.B. a little easier. According to Dr. Perez, although John obviously understood what Dr. Perez was trying to tell him, he gave no feedback one way or the other.
Charlotte Taber is the licensed counselor ordered by the court to conduct a social study in this case. She testified that she visited both Shannon's home and John's home. She also observed John with his children in her office and in the park. According to Taber, John interacted well with the children; they seemed very natural. She also observed John's nephews interact with him in Florida. According to Taber, they jumped in his arms and clung to him. She also testified that in his home John has numerous pictures of his nephews and pictures of J.B.B. and N.B.B. John's house is clean, but is in the process of being reconstructed. There is a bedroom for each of the children. John seems to really want to be a father in every way. He has a strong extended family. Taber believes John will be able to nurture his son, J.B.B.
Taber also testified that the staff at The Willows reported to her that J.B.B.'s symptoms have "deteriorated" quite a bit since he has been there; Taber later admitted, however, that when describing J.B.B.'s condition the staff had not used the word "deteriorated." According to Taber, the optimal placement for J.B.B. is in a residential home. Although neither John nor his girlfriend has received training for taking care of J.B.B., Taber testified that John's plan was for his girlfriend to care for J.B.B. when he was not there and to receive help from other family members. Taber testified that John has been unable to fulfill his child support responsibilities with his children; that he has not seen N.B.B. or J.B.B. much in the past four or five years; and that he has not provided child support.
Taber also testified that the children have known Shannon for four years. However, according to Taber, the biological father carries more weight than someone who is not related. Taber also viewed a video of Sharon, N.B.B. and J.B.B.'s mother, in which Sharon indicated she wanted Shannon to take care of her children. According to Taber, N.B.B. also indicated she wanted to live with Shannon. However, when Taber asked N.B.B. what would happen if the judge said she had to live with her father, N.B.B. responded that she would be fine.
Shannon testified that after Sharon moved to her neighborhood in July 2002, they became very good friends. According to Shannon, during the period of time that they were friends, Sharon became like a second mom to her. Shannon saw Sharon and her two children every day. At least once or twice a month, Shannon took care of the children. They shared holiday events, including Christmas and Thanksgiving dinners. During Sharon's illness, several family members and friends, including Shannon, took care of Sharon and her children. On September 1, 2005, hospice began caring for Sharon, and N.B.B. went to live with Shannon. At the same time, Sharon placed J.B.B. at The Willows. Shannon testified that J.B.B.'s condition has improved considerably since he moved to The Willows. His weight has decreased to a healthy weight, and his vocabulary and writing skills have increased. He seems content, happy, and well-behaved. Shannon testified that she visits J.B.B. about twice a month and that she has taken him home with her on weekends. According to Shannon, his relationship with N.B.B. has improved. Shannon does not believe that an average family would be able to take care of J.B.B. because he needs 24/7 supervision. And, although she would like to have J.B.B. stay with her in her home, Shannon realizes she is not trained to deal with J.B.B.'s needs. N.B.B. has told Shannon that, although she misses her brother, she does not miss having to take care of J.B.B., cleaning him up when he soils himself, or fixing him food and drink. According to Shannon, N.B.B. is now enjoying being a little girl. Shannon testified that N.B.B. is doing very well in school and is getting involved in things she was never involved with before. She is in an anti-drug organization at school; she competed in a UIL reading competition; she is playing league softball; and she is considering being a cheerleader. N.B.B. was not able to experience these things when her mother was alive because of J.B.B. Because J.B.B. needed 24/7 care, Sharon could not easily leave the house. J.B.B. had mood swings, and sometimes Sharon had difficulty handling his temper tantrums. If they went to a restaurant, J.B.B. would throw himself down on the floor. He had aggressive spurts quite often when he did not get what he wanted. N.B.B. had to do a lot for her brother because Sharon was tired, especially toward the end of her life. As a result, N.B.B. had a lot of resentment against J.B.B. According to Shannon, shortly before she died, Sharon made a will in which she named Shannon guardian of the children.
Shannon testified that she wants custody of the children. According to Shannon, it was Sharon's wish that she have them, and John has not had enough contact with them to be able to care for them, especially J.B.B. Shannon is district operations manager of twelve auto parts stores in San Antonio and earns about $40,000 a year.
Shannon testified that when N.B.B. and J.B.B. returned from their visit with John at the end of July 2005, N.B.B. was very angry and had a sour attitude. N.B.B. said that although she had a wonderful time in Florida, she had to "clean up" J.B.B. and had to share a room with him.
Ophelia Stephens, a Qualified Mental Retardation Professional, is a caseworker at The Willows where J.B.B. is in residential treatment. In his initial evaluation, it was noted that J.B.B. had a history of being stubborn and noncompliant. After being admitted, he had episodes of physical aggression, self-interest behaviors, temper tantrums, and noncompliance. He also left his bedroom by going out of a window. And, there has been an increase in his hitting and temper tantrum behaviors. Thus, he has been prescribed Zoloft. However, J.B.B. has improved in his ability to communicate. He is working on toileting skills, and his hygiene has improved. According to Stephens, the ideal situation for a child like J.B.B. is to be out of a large facility and placed at home with his family, a foster home, or a group home. However, his caregivers would need to be trained to handle his behavior. Child care, crisis intervention, and counseling would be needed.
Leslie Brown, a counselor at Poteet Independent School District, testified that she has counseled N.B.B. They started talking when Sharon became ill and talked some after Sharon passed away. N.B.B. has expressed anxiety over where she is going to live. She is doing well where she is and would like to stay there. She is well adjusted and has good grades and attendance at school. According to Brown, Shannon has been very supportive of N.B.B. in school.
The trial judge interviewed N.B.B. in chambers on the record. N.B.B. had written some items on a piece of paper that she presented to the judge. N.B.B. told the judge she would like to stay and live with Shannon. She said she loves her father, but he has a bad temper. According to N.B.B., he raises his voice, and she remembers that when she was little he would throw things. N.B.B. stated that he sometimes hit her mother. And, according to N.B.B., this summer her father hit her brother on the leg when he messed in his pants because of his disability. N.B.B. does not feel like she can connect with her father. She is afraid he will hit her the way he used to her hit her mom. She is afraid of him. According to N.B.B., when she was a little girl, her father hit her with his hand and busted her lip. N.B.B. further stated that her brother is doing well at The Willows, and she is doing well in school.
N.B.B. likes her father's girlfriend, Sandra. Sandra is good with J.B.B. However, according to N.B.B. when she and her brother visited her father in Florida, N.B.B. sometimes had to help Sandra with J.B.B.
Standard of Review
In family law cases such as this, we review the trial court's rulings under an abuse of discretion standard. Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App.--San Antonio 2007, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably. Id. Under an abuse of discretion standard, challenges to the legal and factual sufficiency of the evidence are not independent grounds of error; rather, they are simply factors in assessing whether the trial court abused its discretion. Id. When an appellant challenges the legal and factual sufficiency of the evidence in cases where the proper standard is abuse of discretion, we engage in a two-prong analysis: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. Id. In determining whether the trial court had sufficient information, we use the traditional standard of review for legal and factual sufficiency. Id.
Discussion
In his first issue on appeal, John argues that Shannon, a non-relative, has no standing under section 102.003 of the Texas Family Code to participate in this suit affecting the parent-child relationship. It is apparent, however, that the trial court found that Shannon had standing under a different section of the Texas Family Code: section 102.004(b). That section provides that
the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.
Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2006) (emphasis added). Thus, in order for Shannon to have standing as an "other person" under this section, there must be evidence that (1) she had substantial past contact with the children; and (2) appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. See id.
The evidence shows that Shannon indeed had substantial past contact with both N.B.B. and J.B.B. for a period of about four years before Sharon's death and before John filed suit. Shannon testified that she was good friends with Sharon while they were neighbors, that Sharon had become like a second mom to her, and that she saw the children every day. Shannon often took care of the children and spent holidays with the children and Sharon. Thus, there was legally and factually sufficient evidence that Shannon had substantial past contact with the children.
Furthermore, the evidence was legally and factually sufficient to support the trial court's finding that appointing John sole managing conservator would significantly impair the children's physical health or emotional development. Our discussion of this issue is applicable not only to John's first issue on appeal, which challenges Shannon's standing, but also to John's third issue on appeal in which he argues that the evidence was legally and factually insufficient to rebut the parental presumption required by section 153.131 of the Texas Family Code. The parental presumption section provides that
unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
Tex. Fam. Code Ann. § 153.131(a) (Vernon 2002). Thus, both John's standing issue and his parental presumption issue depend upon whether there was sufficient evidence to support a finding that appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. Further, in John's second issue on appeal, he challenges some, but not all, of the trial court's findings of fact and conclusions of law. The trial court's findings and conclusions relate, for the most part, to this same issue of whether the appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. Therefore, we will combine our discussion of all three of John's issues on appeal.
John argues that there is no evidence that he was abusive to his children or would likely cause physical and/or emotional harm to his children in the future. The evidence shows otherwise. After John and Sharon separated and Sharon moved to Texas, John never visited the children in Texas until May 2005 when Sharon was very ill. He saw J.B.B. on only two other occasions and N.B.B. on three other occasions when they came to Florida to visit him. Because J.B.B. needs constant care, while John went to work, his girlfriend and N.B.B. cared for J.B.B. Several weeks before Sharon died, Sharon and her doctor asked John to take J.B.B. to Florida, but he refused because he did not want to separate the children. This resulted in Sharon having to place J.B.B. in a residential treatment center, The Willows, because he was too hard for her to handle as her illness worsened. N.B.B. had to go live with Shannon.
John's plans for the children include having them come to Florida to live with him and enlisting the help of his family and girlfriend. He plans to place both children in public school and J.B.B. in a special Olympics program after school. Although it is necessary for J.B.B.'s caretaker to have special training, John has not received that training.
In addition to N.B.B. and J.B.B., John has four other children, all by different mothers. He did not support his children until the court required him to do so, and he is behind on child support payments. John makes $500 a week working at a family-owned business, but child support for his other children is deducted from that amount.
When N.B.B. and J.B.B. visited John in Florida in the summer of 2005, N.B.B. returned from the visit very angry because she had to take care of J.B.B. while they were in Florida. N.B.B. also had to help her mother take care of J.B.B., especially toward the end of her mother's life, which caused her to resent him. Now that N.B.B. is not having to help care for J.B.B., she is doing very well in school, is participating in activities, and is enjoying being a little girl.
N.B.B. testified that, although she loves her father, he has a bad temper, raises his voice, and throws things. She remembers that he sometimes hit her mother. This past summer, he hit her brother, J.B.B., because J.B.B. soiled his pants. And, according to N.B.B., when she was little, he hit her once on her lip. N.B.B. is afraid of her father and fears that he will hit her the way he used to hit her mom.
Given this evidence, the trial judge could have easily found that appointing John as joint managing conservator with the right to determine place of primary residence would significantly impair both children's physical health or emotional development. John had had little contact with his children since they moved to Texas. He apparently had relied in the past and intended to rely in the future on N.B.B., his girlfriend, and other family members to care for J.B.B. He seemed to have little understanding of J.B.B.'s constant and substantial needs. His past behavior showed an unwillingness to support his other children as well as N.B.B. and J.B.B. And perhaps most compelling, N.B.B. testified to his violent temperament that caused her to be fearful of him. Thus, the trial court did not err in finding that appointment of John as joint managing conservator with the right to determine place of primary residence would significantly impair the children's physical health or emotional development.
We note that John specifically challenges Findings of Fact Nos. 7, 11, 13, 14, 15, 16, 41, and 42, and Conclusions of Law Nos. 3, 5, 6, 7, and 8.
In Finding of Fact No. 7, the trial court found that the children had not lived in the same home as their father since sometime in 2000. Although the testimony is conflicting and somewhat confusing, there is sufficient evidence to support this finding. John's father testified that Sharon and the children moved to Texas around 1999 to 2000. John testified that Sharon and the children moved to Texas sometime in 2001 or 2002.
In Finding of Fact No. 11, the trial court found that Sharon and her doctor asked John to take J.B.B. in the spring of 2005 and John refused. The evidence shows that Sharon's doctor spoke to John to explore ways to make Sharon's difficulty in handling J.B.B. easier. According to the doctor, John understood what the doctor was trying to tell him, but gave no feedback. According to John, he received a phone call from Sharon's doctor who asked him to help Sharon with J.B.B. John then spoke to Sharon who told him J.B.B. was too hard for her to handle with her illness. John's response to Sharon's request for help was that he and Sharon had always agreed not to separate the children, so he refused to take J.B.B. Thus, although John explained why he refused to take J.B.B. when Sharon and her doctor asked for help, the evidence is nevertheless sufficient to support the trial court's finding.
In Finding of Fact No. 13, the trial court found that N.B.B. saw her father hit her brother during the visit in the summer of 2005. John points out that several of his family members testified that they had never seen John hit J.B.B. And, N.B.B. had stated in the past that John had not hit J.B.B. However, N.B.B. did tell the judge during the hearing that during the summer of 2005 she had seen John hit J.B.B. because J.B.B. had soiled his pants. Thus, although the evidence was conflicting, it was for the trial judge to assess the credibility of the witnesses. Therefore, the evidence was sufficient to support Finding of Fact No. 13.
In Finding of Fact No. 14, the trial court found that in July 2005, Sharon made a video statement in which she indicated John was too unstable to have possession of the children and that she wanted Shannon and Shannon's mother to have custody of the children. In Finding of Fact No. 15, the trial court found that Sharon indicated in the videotape that one reason John was unstable was due to his consumption of alcohol. In Finding of Fact No. 16, the trial court found that Sharon indicated in the videotape that N.B.B. told her that she wanted to stay with Shannon and that N.B.B. did not feel "safe" with John. John challenges Findings of Fact Nos. 14, 15, and 16 for the reason that, although the trial judge watched the videotape, it was never admitted into evidence and therefore is inadmissible hearsay. However, the contents of the videotape came in through the testimony of Taber, the social study investigator, Shannon, and N.B.B. Also, there was testimony from John that he had been convicted of DUI in 1991 and had had his driver's license suspended numerous times. Further, there was no hearsay objection during the hearings; therefore any hearsay objection was waived. Tex. R. Evid. 802 ("Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay").
In Finding of Fact No. 41, the trial court found that N.B.B. made it very clear to the court that she did not want to live with her father. John points out that Taber, the social study investigator, testified that N.B.B. told her she would be fine if she had to live with her dad. And John testified that he and N.B.B. have a great time together. Nonetheless, N.B.B. made statements to the trial judge that she did not want to live with her father, that he has hit her in the past, that he hit her brother, that he hit her mom, and that she is afraid of him. The evidence is sufficient to support the trial court's finding.
In Finding of Fact No. 42, the trial court made a finding that N.B.B. had made some statements that if she were forced to live with her father, she would run away. This evidence came from Taber who reported that Shannon said she feared N.B.B. would run away if she had to live with her father. Again, any hearsay objection to Taber's testimony has been waived. See Tex. R. Evid. 802.
Further, we note that although John has challenged certain trial court findings, he has not challenged the vast majority of the court's findings. Unchallenged findings are binding on the appellate court unless the contrary is established as a matter of law or unless no evidence supports the finding. Davey v. Shaw, 225 S.W.3d 843, 853 (Tex. App.--Dallas 2007, no pet.).
The findings of the trial court that John has failed to challenge can be summarized as follows:
1. The children the subject of this suit are N.B.B. and J.B.B.
2. Sharon and John are the biological parents of the children.
3. Sharon died on September 22, 2005.
4. J.B.B. is moderately to severely mentally retarded.
5. The children lived continuously with Sharon from birth until one month before her death when N.B.B. began living with Shannon and J.B.B. began living at The Willows.
6. Sharon lived in Florida with the children until July 3, 2002, when she moved to Texas.
7. Sharon and John did not live together for approximately one year prior to her move to Texas.
8. From the time Sharon moved to Texas until her death, John had three visits with the children.
9. When N.B.B. and J.B.B. returned from the summer 2005 visit with John, N.B.B. had changed from an outgoing friendly girl to a quiet, wary one, and she told Shannon that she had been responsible for her brother's care while they were in Florida.
10. Sharon placed J.B.B. in The Willows and N.B.B. began living with Shannon shortly before Sharon died.
11. J.B.B.'s behavior became increasingly difficult to control as he became older and larger.
12. Due to J.B.B.'s mental retardation, he was generally nonverbal, his hygiene was extremely poor, and he was not toilet trained and wore diapers.
13. J.B.B. did not function well in the special education classes offered by the public school.
14. J.B.B. often had temper tantrums.
15. Because all of Sharon's energy went to J.B.B., N.B.B. was resentful of her brother and was unable to participate in normal childhood activities outside of the home.
16. J.B.B. requires 24-hour trained, specialized care.
17. The optimum placement for J.B.B. would be in a home setting with persons who have received proper education and training.
18. John's plan was to remove J.B.B. from The Willows and have him at home, put him in public school, and sign him up for a special Olympics program. However, John had made no significant attempts to find out about the special education programs his local school had to offer or what outside resources were available to him for J.B.B.
19. John appeared to have no realistic idea what level of care J.B.B. actually required, and he was simply intending to rely on his girlfriend and his mother to care for J.B.B. while he was working.
20. John has six children with four different mothers. His two oldest children live in Brazil with their mother.
21. John has paid very little, if any, child support for N.B.B. and J.B.B.
22. John did not pay child support for his other two children until court-ordered to do so. John has some contact with his youngest child, but he does not see his 13-year old because of some unspecified problem with that child's mother.
23. John works for his brother with a gross monthly income of $2,000. He is buying his home from his brother who appears to allow him to make payments at his convenience.
24. John's current girlfriend has been with him for several years and does not work outside the home. At the time of trial, John's girlfriend had left the country to be with her ailing mother and had not indicated when she would return.
25. John testified that he had about $300.00 per month left to support himself and anyone living with him after paying his house payment. John drives a company vehicle as his personal vehicle.
26. Although J.B.B. continued to have behavioral problems at The Willows, he had made some improvements.
27. Neither John nor Shannon had obtained training in caring for J.B.B.
28. N.B.B. had made excellent grades in school and had exemplary behavior. N.B.B.'s resentment of J.B.B. had virtually disappeared.
29. N.B.B. and Shannon visit J.B.B. about once a week and take him home about once a month.
30. N.B.B. has been able to re-establish a relationship with her adult half brother who lives in San Antonio.
After reviewing the record, we find these unchallenged findings are supported by the evidence and, therefore, are binding on this court. See Davey, 225 S.W.3d at 853
In addition to challenging certain findings of fact, John also challenges Conclusions of Law Nos. 3, 5, 6, 7, and 8. In Conclusion of Law No. 3, the trial court found Shannon had standing under the Texas Family Code as a person with substantial contact. As previously discussed, the evidence shows that Shannon did have substantial contact with the children.
In Conclusion of Law No. 5, the trial court found that the statutory presumption that John should be appointed as sole managing conservator or joint managing conservator with the right to determine primary residence has been rebutted. In Conclusion of Law No. 6, the trial court found that the presumption is rebutted because the appointment of John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair both children's emotional development. In Conclusion of Law No. 7, the trial court found that the presumption is rebutted because appointment of John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair J.B.B.'s physical development. And, in Conclusion of Law No. 8, the trial court found that because of Conclusions of Law Nos. 6 and 7, it is not in either child's best interest that John be appointed sole managing conservator or joint managing conservator with the right to determine the primary residence. All of these challenged conclusions of law relate to whether appointing John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair the children's emotional and physical development. As previously discussed, the evidence was sufficient to support such a finding, and the trial court did not abuse its discretion.
Therefore, we overrule all three of John's issues on appeal and affirm the trial court's order.
Karen Angelini, Justice
Trust for Child - Parent's breach of fiduciary duty
Lisa Rodriguez v. Fred Rodriguez, No. 04-07-00252-CV (Tex.App.- San Antonio, Nov. 7, 2007)(Opinion by Justice Speedlin )(trust for child, breach of fiduciary duty)(Before Chief Justice López, Justices Marion and Speedlin)
Appeal from 407th District Court of Bexar County
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-11632
Honorable Joe Frazier Brown, Jr., Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: November 7, 2007
Dispostion: Affirmed in part, reformed in part
Lisa Rodriguez appeals the trial court's judgment on a motion for contempt arguing that the evidence is factually insufficient to support the court's findings that she breached her fiduciary duty as constructive trustee for her minor child and must repay certain sums to the child's trust. She further asserts the trial court erred in denying her motion for new trial. We affirm the trial court's judgment, but reform that portion of the judgment extending the maturity date of the trust to provide that the trust shall terminate when the child reaches the age of eighteen years and one day.
Factual and Procedural Background
An agreed final divorce decree dissolving the marriage between Lisa and Fred Rodriguez was entered on May 4, 2004. (1) As part of the division of the marital estate, the decree contained a provision requiring Lisa to pay Fred $27,050 by cash, cashier's check, or money order on July 3, 2004. It was undisputed that Lisa tendered Fred a check for $22,263 in July 2004, leaving a balance of $4,787 for which Fred later obtained a judgment against Lisa. The divorce decree additionally provided that, with respect to the parties' duplex located at 354 and 356 East Craig, Lisa was to pay the mortgage and related expenses, refinance the mortgage within 60 days, releasing Fred from any liability, and "execute a trust instrument and any other documents necessary to transfer the ownership of the duplex . . . to LISA M. RODRIGUEZ as trustee for FRED RYAN RODRIGUEZ," the parties' minor child. The decree further provided that the trust would terminate when the child reached the age of 18 years and one day.
In November 2004, Fred filed a motion for enforcement of the decree alleging that Lisa had failed to establish the trust for their son, had failed to pay the mortgage payments and related expenses on the duplex, and had transferred a one-half interest in the duplex to her mother upon the refinancing of the duplex. On February 4, 2005, after a hearing, the trial court found the previous orders regarding the real property to be held in trust for the minor child were vague and unenforceable. The court entered a clarifying order requiring Lisa to establish a separate savings account for her minor son with her designated as trustee, to deposit all income from the duplex into the account, to pay all mortgage payments and expenses related to the duplex out of the account, and to provide Fred with an accounting of the income and expenses twice a year. (2) The order specifically stated that Lisa "is designated as constructive trustee for the minor child FRED RYAN RODRIGUEZ;" at the conclusion of the hearing, the court explained to Lisa that being a trustee "imposes on you a greater duty . . . to make sure that you care for it as a fiduciary; that is, make sure that you manage the property prudently and any other obligations at law."
In April 2006, Fred filed a motion for contempt alleging Lisa had violated the court's February 4, 2005 clarifying order by: (1) failing to set up a separate savings account in trust for their child; (2) depositing the monthly rental proceeds from the duplex into her personal checking account instead of a separate account for their child; (3) failing to provide an adequate accounting of the income and expenses related to the property; (4) obtaining a home equity loan on the duplex in excess of $22,000 which she used for her sole benefit; and (5) selling the duplex that was to be held in trust for their child. Fred requested that Lisa be held in contempt and fined, that a different trustee be appointed for their child, and that he be awarded $5,000 in attorney's fees. (3)
On November 28, 2006, the court held an evidentiary hearing on the motion for contempt; both Fred and Lisa testified. At the conclusion of the hearing, the court declined to hold Lisa in contempt, but found that she had breached her fiduciary duty as constructive trustee for her son because funds were removed from the trust to satisfy Lisa's personal debts with her knowledge. The court ordered Lisa to reimburse the child's trust for the actual damages caused by her breach, a total of $27,055, which was the aggregate amount deducted from the duplex sale proceeds to pay two personal debts owed by Lisa: $22,268 owed to her parents; and $4,787 owed to Fred. The court also ordered Lisa to transfer the additional $29,000 in sale proceeds, being held in a certificate of deposit and separate account, into the child's trust account. Finally, the court removed Lisa as trustee, ordered the child's trust to be set up at a bank, independent of both parents, and awarded Fred $4,500 in attorney's fees for enforcing the trust. A written "Final Judgment and Order on Motion for Contempt" reflecting the court's oral ruling was signed on January 12, 2007; it appointed the trust department of Randolph Brooks Federal Credit Union ("RBFCU") as interim constructive trustee and ordered the child's trust to be established there. In addition, the written judgment contains a provision extending the maturity date of the child's trust to his twenty-fifth birthday. Subsequently, a clarifying order was entered which removed RBFCU as trustee and appointed a third party individual as trustee for the child's trust; all other provisions of the January 12, 2007 judgment remained in effect. Lisa timely appealed.
Analysis
In her first issue, Lisa contends the evidence is factually insufficient to support the trial court's finding that she breached her fiduciary duty as trustee and that she owes $27,055 to her son's trust. In her brief, Lisa makes a convoluted argument that the "missing" trust money was actually paid to Fred under her "misunderstanding of her obligations" and her "good faith effort to comply" with the terms of the "original" divorce decree, and asserts that the trust should recover the funds from Fred, instead of her. (4)
Fred responds on appeal that this argument was not raised in the trial court and is nevertheless contrary to all the evidence in the record; he asserts that Lisa's appeal is frivolous in view of her stipulations and the evidence, and requests that we impose sanctions. While we agree that Lisa's argument on appeal is illogical in view of the evidence presented at the hearing, as well as her own stipulation, we decline to sanction her for bringing a frivolous appeal because we find some merit in her challenge to the extended maturity date of the trust, and thus her appeal is not wholly frivolous. See Tex. R. App. P. 45 (replacing former Rule 84); see also Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 396-97 (Tex. App.--San Antonio 1999, no pet.).
At the beginning of the contempt hearing, Lisa's attorney stated on the record that Lisa agreed it was "right and fair" that she should pay back the trust for the $22,268 deducted from the sale proceeds to pay her parents' lien on the duplex, as well as the $4,787 deducted from the proceeds to pay Fred's judgment. Later, during her testimony Lisa stipulated that she owes her son's trust the $22,268 that was taken from the sale proceeds for payment of her parents' lien on the duplex; however, she refused to stipulate that she owed the $4,787 to the trust, arguing that Fred received that money and should pay it back to the trust. Given Lisa's stipulation on the record that she owes $22,268 to the trust, we will only address the sufficiency of the evidence to support the court's findings that Lisa breached her fiduciary duty and owes an additional $4,787 to the trust. (5)
At the hearing, Fred testified that several months after Lisa paid him $22,263, he obtained a judgment against Lisa for the $4,787 balance owed on the original $27,050 debt created by the divorce decree. He then filed an abstract of judgment, not intending it to encumber the duplex. Lisa conceded at the contempt hearing that she knew the $4,787 judgment was against her personally, not against her son's trust, and that she knew the title company was going to withhold $4,787 from the duplex sale proceeds thereby causing her son's trust to effectively pay her personal judgment, but she proceeded with the closing of the sale. Fred stated that he received, and retained, a check from the title company in payment of the $4,787 judgment when Lisa sold the duplex. Lisa testified that the duplex was deeded in her name, and that she signed "everything I've ever done with the duplex" in her name, not in her name as trustee for her son. She stated, however, that she made the title company and her real estate agent aware that the duplex was held in trust for her son. On the closing statement for the sale of the duplex, the "seller" is listed as Lisa, with no reference to a trust.
Further, Lisa admitted that after the February 2005 clarifying order was signed, she did not establish a separate savings account for her son with herself designated as trustee. She explained that she did not intend to disregard the court's order, but that her son already had two savings accounts available. Lisa testified that she understood she was the trustee for her son, Ryan, and agreed the judge told her she had a "fiduciary duty" at the time of the clarifying order. Lisa explained that she understood her duty was "to take care of the duplex and look after [her] son's property" and to "safeguard his money," and expressed her belief that she had done so "100%" and had "done nothing wrong." In addition, Lisa stated there was no income from the duplex to deposit in her son's accounts because the duplex was "in the negative." However, she later testified that she deposited "the income that was derived from the duplex" into her personal checking account. Finally, Lisa stated that when the duplex was sold, the title company deposited the proceeds into her checking account but then "that money went directly into an account for Ryan." Lisa stated she opened a savings account for her son at RBFCU after the duplex sale and she "explained to them about the trust;" she stated that she is not designated as a trustee on the RBFCU account, but is "on the account" and "looks over" the funds.
Based on the record before us, we hold that the trial court's finding that Lisa breached her fiduciary duty is not against the great weight and preponderance of the evidence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (in reviewing a factual sufficiency challenge, appellate court considers and weighs all the evidence in support of and contrary to the judgment, and will set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust). It is clear from the record that the trial court based its finding that Lisa breached her duty on her prior knowledge that a portion of the duplex sale proceeds due to the trust would be deducted in order to satisfy two of Lisa's personal debts: a $22,268 debt to her parents; and a $4,787 debt to Fred. The evidence as to this finding of breach was undisputed. The record evidence is more than factually sufficient to support the court's finding of breach of duty and of the amount owed to the trust. (6) We overrule Lisa's first issue.
In her second issue, Lisa argues the court abused its discretion in denying her motion for new trial because (1) the trust funds were paid to Fred and he should be the person to reimburse the trust, and (2) neither breach of fiduciary duty nor a request for extension of the trust's maturity date were pled in Fred's motion for contempt. We review a trial court's denial of a motion for new trial for an abuse of discretion. Director, State Employees Workers'Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). We have already rejected Lisa's argument that the evidence shows that Fred, not her, should reimburse the trust. As to her argument that the court erred in denying her motion for new trial because Fred did not specifically plead breach of fiduciary duty in his contempt motion, that ground was not raised in Lisa's motion for new trial; therefore, the trial court could not have abused its discretion in denying her motion for new trial on a ground not raised. Further, Fred's contempt motion was based on allegations that Lisa had breached her duty as trustee in several ways; even though it was not phrased in terms of a "breach of fiduciary duty," the gist of the motion was a request for a finding of contempt and removal of Lisa as trustee of the child's trust based on her misdeeds as trustee. Lisa made no objection to the admission of evidence concerning her duties, actions and omissions as trustee, and never argued that the issue of breach of fiduciary duty was not before the court. Thus, the issue of breach of fiduciary duty was tried by consent. See Tex. R. Civ. P. 67; see also Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (party's unpleaded issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating that both parties understood the issue was in the case, and other party fails to object).
Finally, Lisa complained in her motion for new trial that the court erred in changing the maturity date of the child's trust from eighteen to twenty-five years of age; the motion for new trial was denied by written order. The record shows that Fred did not request that the trust term be extended in his motion for contempt. Further, at the hearing there was no evidence or argument presented concerning extension of the trust's maturity date, and the court made no finding regarding extension of the trust; therefore, the issue was not tried by consent. See Frazier, 102 S.W.3d at 411. The extended maturity date first appeared in the written judgment signed by the court. It is well established that a judgment must conform to the pleadings, and a judgment rendered without pleadings to support it is fatally defective. Stoner v. Thompson, 578 S.W.2d 679, 682-83 (Tex. 1979); Bilderback v. Priestley, 709 S.W.2d 736, 743 (Tex App.--San Antonio 1986, writ ref'd n.r.e.). Because the record is devoid of any pleadings, evidence or findings to support the court's extension of the trust's maturity date, we reform that portion of the judgment to provide that the trust shall terminate when the child reaches the age of eighteen years and one day, as originally provided in the divorce decree.
Except as reformed, the trial court's judgment is affirmed.
Phylis J. Speedlin, Justice
1. In her appellant's brief, Lisa Rodriguez characterizes the May 4, 2004 final divorce decree as the "second" decree, repeatedly referencing the terms of an "original" or "first" divorce decree in November 2003; however, while a proposed divorce decree containing other terms may have been previously discussed and even agreed to by the parties at one time, the appellate record does not contain a prior divorce decree signed by the trial court. Lisa attached a copy of a divorce decree dated November 13, 2003 that does not contain the trial judge's signature as an appendix to her appellant's brief. We may not consider documents not contained in the appellate record which are attached to a party's brief or appendix. Tex. R. App. P. 34.1; Samara v. Samara, 52 S.W.3d 455, 456 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). In resolving this appeal, therefore, we are only concerned with the final divorce decree signed on May 4, 2004 which appears in the clerk's record. We likewise may not consider the copy of a check attached to the appellant's brief because it is not included in the appellate record.
2. No appeal was taken from the February 4, 2006 order.
3. Fred also requested that the case be forwarded to the district attorney for prosecution for embezzlement of trust funds.
4. Lisa also asserts the divorce decree placed the duplex under a constructive trust for the benefit of her son, with her as trustee, "unbeknownst to her." The record establishes the opposite. The agreed decree reflects Lisa's signature, and Lisa admitted at the contempt hearing that she was familiar with the terms of the divorce decree, and understood that she held the duplex as trustee for her son.
5. We note, however, that the evidence presented at the hearing is more than sufficient to support the court's finding that Lisa owes $22,268 to the trust.
6. Lisa does not argue that she had no fiduciary duty, merely that she did not breach her duty. See S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996) (parents generally stand in the role of fiduciaries toward their minor children).
Appeal from 407th District Court of Bexar County
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-11632
Honorable Joe Frazier Brown, Jr., Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: November 7, 2007
Dispostion: Affirmed in part, reformed in part
Lisa Rodriguez appeals the trial court's judgment on a motion for contempt arguing that the evidence is factually insufficient to support the court's findings that she breached her fiduciary duty as constructive trustee for her minor child and must repay certain sums to the child's trust. She further asserts the trial court erred in denying her motion for new trial. We affirm the trial court's judgment, but reform that portion of the judgment extending the maturity date of the trust to provide that the trust shall terminate when the child reaches the age of eighteen years and one day.
Factual and Procedural Background
An agreed final divorce decree dissolving the marriage between Lisa and Fred Rodriguez was entered on May 4, 2004. (1) As part of the division of the marital estate, the decree contained a provision requiring Lisa to pay Fred $27,050 by cash, cashier's check, or money order on July 3, 2004. It was undisputed that Lisa tendered Fred a check for $22,263 in July 2004, leaving a balance of $4,787 for which Fred later obtained a judgment against Lisa. The divorce decree additionally provided that, with respect to the parties' duplex located at 354 and 356 East Craig, Lisa was to pay the mortgage and related expenses, refinance the mortgage within 60 days, releasing Fred from any liability, and "execute a trust instrument and any other documents necessary to transfer the ownership of the duplex . . . to LISA M. RODRIGUEZ as trustee for FRED RYAN RODRIGUEZ," the parties' minor child. The decree further provided that the trust would terminate when the child reached the age of 18 years and one day.
In November 2004, Fred filed a motion for enforcement of the decree alleging that Lisa had failed to establish the trust for their son, had failed to pay the mortgage payments and related expenses on the duplex, and had transferred a one-half interest in the duplex to her mother upon the refinancing of the duplex. On February 4, 2005, after a hearing, the trial court found the previous orders regarding the real property to be held in trust for the minor child were vague and unenforceable. The court entered a clarifying order requiring Lisa to establish a separate savings account for her minor son with her designated as trustee, to deposit all income from the duplex into the account, to pay all mortgage payments and expenses related to the duplex out of the account, and to provide Fred with an accounting of the income and expenses twice a year. (2) The order specifically stated that Lisa "is designated as constructive trustee for the minor child FRED RYAN RODRIGUEZ;" at the conclusion of the hearing, the court explained to Lisa that being a trustee "imposes on you a greater duty . . . to make sure that you care for it as a fiduciary; that is, make sure that you manage the property prudently and any other obligations at law."
In April 2006, Fred filed a motion for contempt alleging Lisa had violated the court's February 4, 2005 clarifying order by: (1) failing to set up a separate savings account in trust for their child; (2) depositing the monthly rental proceeds from the duplex into her personal checking account instead of a separate account for their child; (3) failing to provide an adequate accounting of the income and expenses related to the property; (4) obtaining a home equity loan on the duplex in excess of $22,000 which she used for her sole benefit; and (5) selling the duplex that was to be held in trust for their child. Fred requested that Lisa be held in contempt and fined, that a different trustee be appointed for their child, and that he be awarded $5,000 in attorney's fees. (3)
On November 28, 2006, the court held an evidentiary hearing on the motion for contempt; both Fred and Lisa testified. At the conclusion of the hearing, the court declined to hold Lisa in contempt, but found that she had breached her fiduciary duty as constructive trustee for her son because funds were removed from the trust to satisfy Lisa's personal debts with her knowledge. The court ordered Lisa to reimburse the child's trust for the actual damages caused by her breach, a total of $27,055, which was the aggregate amount deducted from the duplex sale proceeds to pay two personal debts owed by Lisa: $22,268 owed to her parents; and $4,787 owed to Fred. The court also ordered Lisa to transfer the additional $29,000 in sale proceeds, being held in a certificate of deposit and separate account, into the child's trust account. Finally, the court removed Lisa as trustee, ordered the child's trust to be set up at a bank, independent of both parents, and awarded Fred $4,500 in attorney's fees for enforcing the trust. A written "Final Judgment and Order on Motion for Contempt" reflecting the court's oral ruling was signed on January 12, 2007; it appointed the trust department of Randolph Brooks Federal Credit Union ("RBFCU") as interim constructive trustee and ordered the child's trust to be established there. In addition, the written judgment contains a provision extending the maturity date of the child's trust to his twenty-fifth birthday. Subsequently, a clarifying order was entered which removed RBFCU as trustee and appointed a third party individual as trustee for the child's trust; all other provisions of the January 12, 2007 judgment remained in effect. Lisa timely appealed.
Analysis
In her first issue, Lisa contends the evidence is factually insufficient to support the trial court's finding that she breached her fiduciary duty as trustee and that she owes $27,055 to her son's trust. In her brief, Lisa makes a convoluted argument that the "missing" trust money was actually paid to Fred under her "misunderstanding of her obligations" and her "good faith effort to comply" with the terms of the "original" divorce decree, and asserts that the trust should recover the funds from Fred, instead of her. (4)
Fred responds on appeal that this argument was not raised in the trial court and is nevertheless contrary to all the evidence in the record; he asserts that Lisa's appeal is frivolous in view of her stipulations and the evidence, and requests that we impose sanctions. While we agree that Lisa's argument on appeal is illogical in view of the evidence presented at the hearing, as well as her own stipulation, we decline to sanction her for bringing a frivolous appeal because we find some merit in her challenge to the extended maturity date of the trust, and thus her appeal is not wholly frivolous. See Tex. R. App. P. 45 (replacing former Rule 84); see also Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 396-97 (Tex. App.--San Antonio 1999, no pet.).
At the beginning of the contempt hearing, Lisa's attorney stated on the record that Lisa agreed it was "right and fair" that she should pay back the trust for the $22,268 deducted from the sale proceeds to pay her parents' lien on the duplex, as well as the $4,787 deducted from the proceeds to pay Fred's judgment. Later, during her testimony Lisa stipulated that she owes her son's trust the $22,268 that was taken from the sale proceeds for payment of her parents' lien on the duplex; however, she refused to stipulate that she owed the $4,787 to the trust, arguing that Fred received that money and should pay it back to the trust. Given Lisa's stipulation on the record that she owes $22,268 to the trust, we will only address the sufficiency of the evidence to support the court's findings that Lisa breached her fiduciary duty and owes an additional $4,787 to the trust. (5)
At the hearing, Fred testified that several months after Lisa paid him $22,263, he obtained a judgment against Lisa for the $4,787 balance owed on the original $27,050 debt created by the divorce decree. He then filed an abstract of judgment, not intending it to encumber the duplex. Lisa conceded at the contempt hearing that she knew the $4,787 judgment was against her personally, not against her son's trust, and that she knew the title company was going to withhold $4,787 from the duplex sale proceeds thereby causing her son's trust to effectively pay her personal judgment, but she proceeded with the closing of the sale. Fred stated that he received, and retained, a check from the title company in payment of the $4,787 judgment when Lisa sold the duplex. Lisa testified that the duplex was deeded in her name, and that she signed "everything I've ever done with the duplex" in her name, not in her name as trustee for her son. She stated, however, that she made the title company and her real estate agent aware that the duplex was held in trust for her son. On the closing statement for the sale of the duplex, the "seller" is listed as Lisa, with no reference to a trust.
Further, Lisa admitted that after the February 2005 clarifying order was signed, she did not establish a separate savings account for her son with herself designated as trustee. She explained that she did not intend to disregard the court's order, but that her son already had two savings accounts available. Lisa testified that she understood she was the trustee for her son, Ryan, and agreed the judge told her she had a "fiduciary duty" at the time of the clarifying order. Lisa explained that she understood her duty was "to take care of the duplex and look after [her] son's property" and to "safeguard his money," and expressed her belief that she had done so "100%" and had "done nothing wrong." In addition, Lisa stated there was no income from the duplex to deposit in her son's accounts because the duplex was "in the negative." However, she later testified that she deposited "the income that was derived from the duplex" into her personal checking account. Finally, Lisa stated that when the duplex was sold, the title company deposited the proceeds into her checking account but then "that money went directly into an account for Ryan." Lisa stated she opened a savings account for her son at RBFCU after the duplex sale and she "explained to them about the trust;" she stated that she is not designated as a trustee on the RBFCU account, but is "on the account" and "looks over" the funds.
Based on the record before us, we hold that the trial court's finding that Lisa breached her fiduciary duty is not against the great weight and preponderance of the evidence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (in reviewing a factual sufficiency challenge, appellate court considers and weighs all the evidence in support of and contrary to the judgment, and will set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust). It is clear from the record that the trial court based its finding that Lisa breached her duty on her prior knowledge that a portion of the duplex sale proceeds due to the trust would be deducted in order to satisfy two of Lisa's personal debts: a $22,268 debt to her parents; and a $4,787 debt to Fred. The evidence as to this finding of breach was undisputed. The record evidence is more than factually sufficient to support the court's finding of breach of duty and of the amount owed to the trust. (6) We overrule Lisa's first issue.
In her second issue, Lisa argues the court abused its discretion in denying her motion for new trial because (1) the trust funds were paid to Fred and he should be the person to reimburse the trust, and (2) neither breach of fiduciary duty nor a request for extension of the trust's maturity date were pled in Fred's motion for contempt. We review a trial court's denial of a motion for new trial for an abuse of discretion. Director, State Employees Workers'Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). We have already rejected Lisa's argument that the evidence shows that Fred, not her, should reimburse the trust. As to her argument that the court erred in denying her motion for new trial because Fred did not specifically plead breach of fiduciary duty in his contempt motion, that ground was not raised in Lisa's motion for new trial; therefore, the trial court could not have abused its discretion in denying her motion for new trial on a ground not raised. Further, Fred's contempt motion was based on allegations that Lisa had breached her duty as trustee in several ways; even though it was not phrased in terms of a "breach of fiduciary duty," the gist of the motion was a request for a finding of contempt and removal of Lisa as trustee of the child's trust based on her misdeeds as trustee. Lisa made no objection to the admission of evidence concerning her duties, actions and omissions as trustee, and never argued that the issue of breach of fiduciary duty was not before the court. Thus, the issue of breach of fiduciary duty was tried by consent. See Tex. R. Civ. P. 67; see also Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.--Houston [14th Dist.] 2003, no pet.) (party's unpleaded issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating that both parties understood the issue was in the case, and other party fails to object).
Finally, Lisa complained in her motion for new trial that the court erred in changing the maturity date of the child's trust from eighteen to twenty-five years of age; the motion for new trial was denied by written order. The record shows that Fred did not request that the trust term be extended in his motion for contempt. Further, at the hearing there was no evidence or argument presented concerning extension of the trust's maturity date, and the court made no finding regarding extension of the trust; therefore, the issue was not tried by consent. See Frazier, 102 S.W.3d at 411. The extended maturity date first appeared in the written judgment signed by the court. It is well established that a judgment must conform to the pleadings, and a judgment rendered without pleadings to support it is fatally defective. Stoner v. Thompson, 578 S.W.2d 679, 682-83 (Tex. 1979); Bilderback v. Priestley, 709 S.W.2d 736, 743 (Tex App.--San Antonio 1986, writ ref'd n.r.e.). Because the record is devoid of any pleadings, evidence or findings to support the court's extension of the trust's maturity date, we reform that portion of the judgment to provide that the trust shall terminate when the child reaches the age of eighteen years and one day, as originally provided in the divorce decree.
Except as reformed, the trial court's judgment is affirmed.
Phylis J. Speedlin, Justice
1. In her appellant's brief, Lisa Rodriguez characterizes the May 4, 2004 final divorce decree as the "second" decree, repeatedly referencing the terms of an "original" or "first" divorce decree in November 2003; however, while a proposed divorce decree containing other terms may have been previously discussed and even agreed to by the parties at one time, the appellate record does not contain a prior divorce decree signed by the trial court. Lisa attached a copy of a divorce decree dated November 13, 2003 that does not contain the trial judge's signature as an appendix to her appellant's brief. We may not consider documents not contained in the appellate record which are attached to a party's brief or appendix. Tex. R. App. P. 34.1; Samara v. Samara, 52 S.W.3d 455, 456 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). In resolving this appeal, therefore, we are only concerned with the final divorce decree signed on May 4, 2004 which appears in the clerk's record. We likewise may not consider the copy of a check attached to the appellant's brief because it is not included in the appellate record.
2. No appeal was taken from the February 4, 2006 order.
3. Fred also requested that the case be forwarded to the district attorney for prosecution for embezzlement of trust funds.
4. Lisa also asserts the divorce decree placed the duplex under a constructive trust for the benefit of her son, with her as trustee, "unbeknownst to her." The record establishes the opposite. The agreed decree reflects Lisa's signature, and Lisa admitted at the contempt hearing that she was familiar with the terms of the divorce decree, and understood that she held the duplex as trustee for her son.
5. We note, however, that the evidence presented at the hearing is more than sufficient to support the court's finding that Lisa owes $22,268 to the trust.
6. Lisa does not argue that she had no fiduciary duty, merely that she did not breach her duty. See S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996) (parents generally stand in the role of fiduciaries toward their minor children).
Monday, November 5, 2007
Jailed Husband's affidavit of indigence was not too late to justify dismissal of his appeal from divorce decree
In two cases decided Nov. 2, 2007 the Texas Supreme Court cuts poor divorce litigants some slack and reverses the dismissal of their appeals for failure to immediately file the required affidavit of inability to pay costs.
Springer v. Springer, No. 06-0382 (Tex. Nov. 2, 2007)(per curiam)(deadline for appeal fee payment or affidavit of indigence)
MICHAEL DAVID SPRINGER v. LISA FERGASON SPRINGER; from Johnson County; 10th district (10-06-00040-CV, ___ SW3d ___, 03‑22‑06) Also see --> companion case
Michael Springer’s wife filed for divorce while he was incarcerated and Springer sought to appeal the resulting judgment dividing marital property. Springer timely filed a notice of appeal, but did not pay the filing fee or file an affidavit of indigence “with or before” the notice as Texas Rule of Appellate Procedure 20.1(c)(1) requires. One month after filing his notice of appeal, Springer filed an affidavit of indigence. Two months later, the court of appeals notified Springer that his filing fee was past due and his case would be dismissed if the fee was not paid within ten days. Springer did not pay the fee. The court of appeals dismissed Springer’s appeal for failure to pay the fee or file an affidavit of indigence “with or before” the notice of appeal. We hold that the court of appeals erred in dismissing Springer’s appeal.
We recently decided two cases similar to the one presented. In Higgins v. Randall County Sheriff’s Office, the court of appeals dismissed an inmate’s appeal for failure to file an affidavit of indigence “with or before” the notice of appeal, although the affidavit was filed within the ten days the court of appeals’ order allowed to correct the error by paying the fee. 193 S.W.3d 898, 899-900 (Tex. 2006). Similarly, in Hood v. Wal-Mart Stores, Inc., the court of appeals dismissed an appeal when the appellant filed an affidavit of indigence not “with or before” the notice of appeal but within the ten-day period for paying the filing fee. 216 S.W.3d 829, 830 (Tex. 2007). We reversed those dismissals, noting that the affidavit of indigence is no longer a jurisdictional requirement and holding that Rule 44.3 prohibits dismissal for formal defects or irregularities in appellate procedure without first allowing the appellant a reasonable time to correct the error. Id. at 830; Higgins, 193 S.W.3d at 899-900. Thus, failure to file an affidavit of indigence “with or before” a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so.
In this case, Springer’s notice of appeal was initially defective because it was unaccompanied by the filing fee or an affidavit of indigence as required by Rule 20.1(c)(1). However, Springer corrected the defect by filing his affidavit of indigence shortly thereafter; it was not even necessary for the court of appeals to permit him additional reasonable time to correct the defect. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand to that court for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1.
Opinion Delivered: November 2, 2007
Springer v. Springer, No. 06-0382 (Tex. Nov. 2, 2007)(per curiam)(deadline for appeal fee payment or affidavit of indigence)
MICHAEL DAVID SPRINGER v. LISA FERGASON SPRINGER; from Johnson County; 10th district (10-06-00040-CV, ___ SW3d ___, 03‑22‑06) Also see --> companion case
Michael Springer’s wife filed for divorce while he was incarcerated and Springer sought to appeal the resulting judgment dividing marital property. Springer timely filed a notice of appeal, but did not pay the filing fee or file an affidavit of indigence “with or before” the notice as Texas Rule of Appellate Procedure 20.1(c)(1) requires. One month after filing his notice of appeal, Springer filed an affidavit of indigence. Two months later, the court of appeals notified Springer that his filing fee was past due and his case would be dismissed if the fee was not paid within ten days. Springer did not pay the fee. The court of appeals dismissed Springer’s appeal for failure to pay the fee or file an affidavit of indigence “with or before” the notice of appeal. We hold that the court of appeals erred in dismissing Springer’s appeal.
We recently decided two cases similar to the one presented. In Higgins v. Randall County Sheriff’s Office, the court of appeals dismissed an inmate’s appeal for failure to file an affidavit of indigence “with or before” the notice of appeal, although the affidavit was filed within the ten days the court of appeals’ order allowed to correct the error by paying the fee. 193 S.W.3d 898, 899-900 (Tex. 2006). Similarly, in Hood v. Wal-Mart Stores, Inc., the court of appeals dismissed an appeal when the appellant filed an affidavit of indigence not “with or before” the notice of appeal but within the ten-day period for paying the filing fee. 216 S.W.3d 829, 830 (Tex. 2007). We reversed those dismissals, noting that the affidavit of indigence is no longer a jurisdictional requirement and holding that Rule 44.3 prohibits dismissal for formal defects or irregularities in appellate procedure without first allowing the appellant a reasonable time to correct the error. Id. at 830; Higgins, 193 S.W.3d at 899-900. Thus, failure to file an affidavit of indigence “with or before” a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so.
In this case, Springer’s notice of appeal was initially defective because it was unaccompanied by the filing fee or an affidavit of indigence as required by Rule 20.1(c)(1). However, Springer corrected the defect by filing his affidavit of indigence shortly thereafter; it was not even necessary for the court of appeals to permit him additional reasonable time to correct the defect. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand to that court for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1.
Opinion Delivered: November 2, 2007
Texas Supreme Court says mother's appeal should not have been dismissed for failure to file affidavit of indigence together with her notice of appeal
Sprowl v. Payne, No. 06-0533 (Tex. Nov. 2, 2007)(per curiam)(appellate procedure, payment for record, indigence)
Full style of case: LINDA SPROWL AND J.S., A CHILD v. GEORGE MARTIN PAYNE; from Dallas County; 5th district (05-06-00062-CV, ___ SW3d ___, 05‑04‑06)
Respondent's motion to strike and to disregard the appendices granted Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
PER CURIAM OPINION
The trial court dismissed Linda Sprowl’s fourth paternity suit against George Payne concerning her daughter, Jennifer, based on res judicata. Sprowl timely filed a notice of appeal, but did not pay to have the record prepared or file an affidavit of indigence “with or before” the notice as Texas Rule of Appellate Procedure 20.1(c)(1) requires. Seven days after filing her notice of appeal, Sprowl filed an affidavit of indigence.
The clerk contested the timeliness of Sprowl’s affidavit, and the trial court sustained that contest. The court of appeals agreed that Sprowl’s affidavit of indigence was untimely because it was not filed “with or before” her notice of appeal, and ordered Sprowl to file proof within ten days that she had paid or made arrangements to pay for the appellate record. When Sprowl failed to do so, the court dismissed her appeal. We hold that the court of appeals erred in dismissing Sprowl’s appeal.
We recently decided two cases similar to the one presented. In Higgins v. Randall County Sheriff’s Office, the court of appeals dismissed an inmate’s appeal for failure to pay the filing fee or file an affidavit of indigence “with or before” the notice of appeal, although the affidavit was filed within the ten days the court of appeals’ order allowed to correct the error by paying the fee. 193 S.W.3d 898, 899-900 (Tex. 2006).
Similarly, in Hood v. Wal-Mart Stores, Inc., the court of appeals dismissed an appeal when the appellant filed an affidavit of indigence not “with or before” the notice of appeal but within the ten-day period for paying the filing fee. 216 S.W.3d 829, 830 (Tex. 2007).
We reversed those dismissals, noting that the affidavit of indigence is no longer a jurisdictional requirement for an appeal and holding that Rule 44.3 prohibits dismissal for formal defects or irregularities in appellate procedure without first allowing the appellant a reasonable time to correct the error. Id. at 830; Higgins, 193 S.W.3d at 899-900. Thus, failure to file an affidavit of indigence “with or before” a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so.
In this case, Sprowl’s notice of appeal was initially defective because it was unaccompanied by the filing fee or an affidavit of indigence as required by Rule 20.1(c)(1). However, Sprowl corrected the defect by filing her affidavit of indigence shortly thereafter; it was not even necessary for the court of appeals to permit her additional reasonable time to correct the defect. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand to that court for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1.
Opinion Delivered: November 2, 2007
Full style of case: LINDA SPROWL AND J.S., A CHILD v. GEORGE MARTIN PAYNE; from Dallas County; 5th district (05-06-00062-CV, ___ SW3d ___, 05‑04‑06)
Respondent's motion to strike and to disregard the appendices granted Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
PER CURIAM OPINION
The trial court dismissed Linda Sprowl’s fourth paternity suit against George Payne concerning her daughter, Jennifer, based on res judicata. Sprowl timely filed a notice of appeal, but did not pay to have the record prepared or file an affidavit of indigence “with or before” the notice as Texas Rule of Appellate Procedure 20.1(c)(1) requires. Seven days after filing her notice of appeal, Sprowl filed an affidavit of indigence.
The clerk contested the timeliness of Sprowl’s affidavit, and the trial court sustained that contest. The court of appeals agreed that Sprowl’s affidavit of indigence was untimely because it was not filed “with or before” her notice of appeal, and ordered Sprowl to file proof within ten days that she had paid or made arrangements to pay for the appellate record. When Sprowl failed to do so, the court dismissed her appeal. We hold that the court of appeals erred in dismissing Sprowl’s appeal.
We recently decided two cases similar to the one presented. In Higgins v. Randall County Sheriff’s Office, the court of appeals dismissed an inmate’s appeal for failure to pay the filing fee or file an affidavit of indigence “with or before” the notice of appeal, although the affidavit was filed within the ten days the court of appeals’ order allowed to correct the error by paying the fee. 193 S.W.3d 898, 899-900 (Tex. 2006).
Similarly, in Hood v. Wal-Mart Stores, Inc., the court of appeals dismissed an appeal when the appellant filed an affidavit of indigence not “with or before” the notice of appeal but within the ten-day period for paying the filing fee. 216 S.W.3d 829, 830 (Tex. 2007).
We reversed those dismissals, noting that the affidavit of indigence is no longer a jurisdictional requirement for an appeal and holding that Rule 44.3 prohibits dismissal for formal defects or irregularities in appellate procedure without first allowing the appellant a reasonable time to correct the error. Id. at 830; Higgins, 193 S.W.3d at 899-900. Thus, failure to file an affidavit of indigence “with or before” a notice of appeal will not support dismissal unless the appellant is given a reasonable time to correct the defect and fails to do so.
In this case, Sprowl’s notice of appeal was initially defective because it was unaccompanied by the filing fee or an affidavit of indigence as required by Rule 20.1(c)(1). However, Sprowl corrected the defect by filing her affidavit of indigence shortly thereafter; it was not even necessary for the court of appeals to permit her additional reasonable time to correct the defect. Accordingly, without hearing argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand to that court for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1.
Opinion Delivered: November 2, 2007
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