Opinion
No. 04-17-00161-CV
07-05-2018
IN THE INTEREST OF I.G.W. and D.P.W., Children
MEMORANDUM OPINION
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-CI-07615
Honorable Norma Gonzales, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Daina appeals the trial court's orders appointing her and her children's father, Douglas, as the children's joint managing conservators, and granting Douglas the exclusive right to designate the children's primary residence. Deferring to the trial court's role as the factfinder in making reasonable credibility determinations, we affirm the trial court's orders.
We do not refer to the parties by their full names because the names of their children, I.G.W. and D.P.W., are considered sensitive data. See TEX. R. APP. P. 9.9(a)(3).
BACKGROUND
Douglas filed for divorce from Daina on the grounds of insupportability and cruel treatment. Daina countersued for divorce on the same grounds. The children of the marriage are I.G.W., a daughter born in 2012, and D.P.W., a son born in 2014. Both Daina and Douglas sought sole managing conservatorship of the children and the exclusive right to designate their primary residence.
The case proceeded to a final hearing at which the primary issues pertained to managing conservatorship and the right to designate the children's primary residence. The parties explained to the trial court at the outset that Douglas, who is in the military, was being transferred to Virginia for work, and Daina planned to move to El Paso to be near her family. The trial court heard the testimony of Daina, Douglas, several of Daina's friends, a military victim's advocate, and Douglas's aunt Deborah, who lived with Douglas and planned to move with him to Virginia.
The trial court admitted into evidence several exhibits, which were withdrawn at the end of the hearing.
At the close of the hearing, the trial court granted Daina and Douglas a no-fault divorce, appointed them joint managing conservators, and gave Douglas the exclusive right to designate the children's primary residence with no geographical restriction. The trial court signed final orders reducing its rulings to writing, and Daina timely appealed.
STANDARD OF REVIEW
We review a trial court's determinations as to conservatorship and the right to designate a child's primary residence for an abuse of discretion. See In re M.G.N., 491 S.W.3d 386, 405-06 (Tex. App.—San Antonio 2016, pet. denied); In re T.K.D-H., 439 S.W.3d 473, 481 (Tex. App.—San Antonio 2014, no pet.). "A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles." In re M.G.N., 491 S.W.3d at 406. A trial court does not abuse its discretion if it bases its decisions on conflicting evidence or if "there is some evidence of substantive and probative character to support the trial court's decision." In re J.J.G., 540 S.W.3d 44, 55 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
We remain mindful that the trial court is best able to observe and assess witnesses' demeanor and credibility. See In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.). We must therefore defer to the trial court's credibility determinations and resolution of underlying facts that may have affected its determination, and we will not substitute our judgment of witnesses' credibility for that of the trial court. Id. We also will uphold a trial court's order "on any legal theory supported by the evidence." Id. at 428.
JOINT MANAGING CONSERVATORSHIP & ACCESS TO THE CHILDREN
In her first three issues, Daina complains the trial court erred by appointing Douglas as a joint managing conservator and allowing him to have access to the children. It is presumed the appointment of a child's parents as joint managing conservators is in the child's best interest. See TEX. FAM. CODE ANN. § 153.131(b) (West 2014). Generally, a trial court must appoint the child's parents as joint managing conservators, but there are some exceptions. See id. § 153.131(a).
Daina argues two exceptions apply in this case. First, under section 153.004 of the Texas Family Code, a trial court may not appoint a parent as a joint managing conservator "if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child." TEX. FAM. CODE ANN. § 153.004(b) (West Supp. 2017). A trial court also may not allow a parent to have access to a child if a preponderance of the evidence shows there is a history or pattern of committing family violence during the pendency of the suit or the two years before the date the suit was filed. Id. § 153.004(d)(1).
Daina argues her testimony that Douglas was abusive is "credible evidence." She cites to her testimony that Douglas pushed her onto the floor while she was pregnant; restricted her access to money; pulled her by her shirt when accusing her of stealing $5,000 that she claims to have used for a family member's funeral; and pulled her by the arm out of the house and pushed her, causing her to fall to the ground. However, Douglas denied physically abusing Daina and gave a conflicting account of the incidents about which Daina testified. Douglas testified that during those incidents, Daina physically abused him and emotionally abused him on other occasions. The trial court also heard testimony undermining Daina's credibility as a witness, such as Daina testifying in contradiction to her medical records and text message history and not knowing the name of the family member's funeral on which she spent $5,000.
For example, Douglas testified Daina constantly accused him falsely of having an affair, once had him strip down naked so she could check for hickies on his body, and told him numerous times in front of the children that he had a small penis.
Douglas and Daina disputed whether Douglas had physically abused Daina or had a history or pattern of committing family violence. Additionally, nothing in the record indicates the trial court did not take Daina's testimony into account when making its decision on the issue of conservatorship. See Stallworth v. Stallworth, 201 S.W.3d 338, 348 (Tex. App.—Dallas 2006, no pet.) (holding conservatorship determination was not an abuse of discretion when there was conflicting evidence regarding violence between the children's parents). Although Daina argues her testimony is "credible evidence," we must defer to the trial court's role as the factfinder in determining what evidence it found credible. See In re A.L.E., 279 S.W.3d at 427. Because the trial court reasonably could have found Daina's testimony about Douglas's physical abuse was not credible, section 153.004 of the Texas Family Code did not preclude the trial court from appointing Douglas as a joint managing conservator.
Daina also argues that under Texas Family Code section 153.131, a trial court may not appoint a parent as a joint managing conservator if "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." Id. § 153.131(a). The trial court did not make an express finding that appointing both parents would be contrary to the children's best interest. But Daina contends the trial court should have found, and erred by not finding, that appointing Douglas would significantly impair the children's physical health or emotional development. See id. Under Section 153.131(a) of the Texas Family Code, a petitioner must "offer evidence of specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child." Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990).
In support of her argument about Section 153.131(a), Daina cites to her testimony that Douglas favors I.G.W. and blames D.P.W. for complications Daina suffered after childbirth; Douglas once painted D.P.W.'s fingernails to provoke Daina; and Douglas once wrote on D.P.W.'s leg that Daina is not a good mother. However, Daina also testified, "I have nothing to say in the course of [Douglas] being a bad father" and "I by no means want to take [the children] from their dad." Furthermore, Douglas testified he has a good rapport with both children, and D.P.W. "would always run to [him] when he wanted something." Douglas, as well as his aunt Deborah, testified that in Douglas's care, the children behave better, and in Daina's care, the children yell and scream more and it takes longer for the children to be redirected. Douglas also gave conflicting testimony about the drawing on D.P.W.'s leg, testifying that one time he and Daina were arguing about D.P.W. being "a daddy's boy" or a "momma's boy," and he drew a "daddy tattoo" on D.P.W.'s leg when D.P.W. was asleep. Douglas explained, "You see the mother tattoos. Instead of a mother's tattoos, it's a daddy tattoo." Douglas testified D.P.W. "never even knew it was there."
Daina also cites to her testimony that I.G.W. has type-I diabetes, and Douglas does not adequately address I.G.W.'s medical needs. But the trial court heard testimony that Daina embellished I.G.W.'s medical condition, once falsely representing to the court that I.G.W. was in a diabetic coma. The evidence also showed Douglas was living with Deborah, and she planned to move to Virginia with Douglas and the children, had worked as a registered nurse, and had taken responsibility for I.G.W.'s diabetic care when I.G.W. was with Douglas. Although Daina cites to evidence that Deborah is receiving social security disability income, Deborah testified her disability would not prevent her from adequately taking care of the children. The trial court was entitled to make determinations about Daina's credibility as a witness, and we must defer to the trial court's role in making credibility determinations and in determining the underlying facts of the case. See In re A.L.E., 279 S.W.3d at 427.
Daina also relies on evidence that she is a good mother, addresses the children's needs, is clean and organized, has an appropriate home for the children, and prioritizes the children over other matters. She further relies on evidence that her and Douglas's marital home was once dirty and unsanitary. However, Douglas disputed leaving the house in such a condition and testified he had left the house clean. The evidence Daina relies on does not establish that, based on Douglas's actions or omissions, an award of custody to Douglas would result in physical or emotional harm to the children. See Lewelling, 796 S.W.2d at 167. The trial court reasonably could have found that appointing Douglas as a joint managing conservator was in the children's best interest. See id. We therefore hold section 153.131 of the Texas Family Code did not preclude the trial court from appointing Douglas as a joint managing conservator.
Daina and Douglas presented conflicting evidence, and the trial court was in the best position to observe and assess their demeanor and credibility as witnesses. See In re A.L.E., 279 S.W.3d at 427. We must therefore defer to the trial court's resolution of the conflicting evidence, and we may not substitute our judgment of witnesses' credibility for that of the trial court. See id. Because there was some evidence of a substantive and probative character to support the trial court's decision, the trial court did not abuse its discretion by appointing Douglas as a joint managing conservator. See In re J.J.G., 540 S.W.3d at 55; Stallworth, 201 S.W.3d at 348.
EXCLUSIVE RIGHT TO DESIGNATE THE CHILDREN'S PRIMARY RESIDENCE
Daina argues the trial court abused its discretion by granting Douglas the exclusive right to designate the children's primary residence because doing so was not in the children's best interest. When, as here, a trial court renders an order appointing joint managing conservators, the trial court must "designate the conservator who has the exclusive right to determine the primary residence of the child." TEX. FAM. CODE ANN. § 153.134(b)(1) (West 2014). "The best interest of the child shall always be the primary consideration of the court in determining issues of conservatorship and possession of and access to the child." In re M.A.M., 346 S.W.3d 10, 14 (Tex. App.—Dallas 2011, pet. denied) (citing TEX. FAM. CODE ANN. § 153.002 (West 2014)).
"We employ the non-exhaustive list of Holley factors to determine the best interests of the child." Epps v. Deboise, 537 S.W.3d 238, 247 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)). "These factors include (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by the individuals seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent." Id. (citing Holley, 544 S.W.2d at 371-72); see TEX. FAM. CODE ANN. § 263.307(b) (West Supp. 2017) (listing other best-interest factors to consider).
Daina again asserts there is evidence that Douglas has a history of family violence. But as we have noted, we must defer to the trial court's role of resolving the underlying facts based on conflicting evidence. See In re A.L.E., 279 S.W.3d at 427. Daina also cites her testimony that she plans to move to El Paso to be near her family, obtain a bachelor's degree, and work in the banking industry. She also relies on evidence showing Douglas works for the military, must be reassigned to different locations every few years, could be deployed at any time, and is in a better position than Daina to travel in order to visit the children.
However, the evidence also showed Daina did not have a stable job, made $500 a month, and was living in temporary housing. Douglas and Deborah testified Deborah would provide a family support system for the children in Virginia, and Douglas testified he did not oppose Daina moving to Virginia to be close to the children. He also did not oppose forgoing child support from Daina so that she could afford to travel and visit the children. Although Daina argues that, based on evidence favorable to her, she would provide a better home for the children, the trial court reasonably could have found that granting Douglas the exclusive right to designate the children's primary residence is in the children's best interest. We cannot say the trial court abused its discretion by granting Douglas the exclusive right to designate the children's primary residence. See In re M.G.N., 491 S.W.3d at 406.
CONCLUSION
We affirm the trial court's order.
Luz Elena D. Chapa, Justice