Opinion
NO. 02-14-00124-CV
04-21-2016
JACOB PORTILLO APPELLANT v. ANNE NICOLE PORTILLO APPELLEE
FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 322-531004-13 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Jacob Portillo appeals from the trial court's final decree of divorce. In five issues, Jacob contends (1) the trial court abused its discretion by granting Appellee Anne Nicole Portillo the exclusive right to determine the primary residence of Jacob and Anne's two children; (2) the trial court abused its discretion by failing to grant Jacob a divorce on the grounds of adultery; (3) the trial court abused its discretion by failing to grant Jacob a divorce on the grounds of cruelty; (4) the trial court abused its discretion by granting a divorce to Anne on the grounds of cruelty, or alternatively, the evidence was legally and factually insufficient to support granting a divorce to Anne on the grounds of cruelty; and (5) the evidence was legally and factually insufficient to support the trial court's legal conclusion that Jacob was guilty of cruel treatment against himself. We affirm.
I. Background
Jacob and Anne married in October 2007. They had two children, one in 2009 and one in 2011, and separated in January 2013. In February 2013, Jacob filed for divorce on the grounds of cruelty, adultery, and insupportability. Anne counterpetitioned for divorce on the grounds of cruelty and insupportability. Both parties sought sole managing conservatorship of the children.
In May 2013, the trial court entered agreed temporary orders appointing both parties as temporary joint managing conservators of the children. The trial court designated Jacob as the parent with the exclusive right to designate the primary residence of the children and gave Anne standard possession of the children. The trial court also ordered Anne to pay child support.
The case was tried to the bench in October 2013. The trial court granted Anne a divorce and dissolved the marriage on the grounds of insupportability and cruelty. The trial court appointed Jacob and Anne as joint managing conservators and gave Anne the exclusive right to determine the primary residence of the children. The trial court ordered Jacob to pay child support and gave him expanded standard possession of the children. The trial court also divided the marital property.
The trial court entered findings of fact and conclusions of law. Jacob appealed.
II. Standards of Review
In his first four issues, Jacob argues that the trial court erred by granting Anne the right to determine the children's primary residence and by granting—or failing to grant—the divorce on fault grounds. We review these issues for an abuse of discretion. See In re Marriage of C.A.S., 405 S.W.3d 373, 382 (Tex. App.—Dallas 2013, no pet.); In re D.G.G., No. 11-07-00356-CV, 2009 WL 2470498, at *1 (Tex. App.—Eastland Aug. 13, 2009, no pet.) (mem. op.) (citing Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.—Houston [1st Dist.] 2001, no pet.)). A trial court abuses its discretion if the court acts without reference to any guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).
In family-law cases, the traditional sufficiency standards of review overlap with the abuse-of-discretion standard of review; therefore, legal and factual insufficiency are not independent grounds of error but are relevant factors in our assessment of whether the trial court abused its discretion. Neyland v. Raymond, 324 S.W.3d 646, 649 (Tex. App.—Fort Worth 2010, no pet.). To determine whether there has been an abuse of discretion because the evidence is legally or factually insufficient to support the trial court's decision, we must determine (1) whether the trial court had sufficient evidence upon which to exercise its discretion and (2) whether the trial court erred in its application of that discretion. Id. The applicable sufficiency review comes into play with regard to the first question. Id. We then proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id.
We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
When findings of fact are filed and are unchallenged, they occupy the same position and are entitled to the same weight as a jury's verdict; they are binding on an appellate court unless the contrary is established as a matter of law or there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Inimitable Grp., L.P. v. Westwood Grp. Dev. II, Ltd., 264 S.W.3d 892, 902 & n.4 (Tex. App.—Fort Worth 2008, no pet.). A court of appeals cannot make original fact findings; it can only "unfind" facts. Tex. Nat'l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex. 1986); AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 519 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh'g). When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
We review the trial court's legal conclusions de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We may review conclusions of law to determine their correctness based upon the facts, but we will not reverse because of an erroneous conclusion if the trial court rendered the proper judgment. City of Austin v. Whittington, 384 S.W.3d 766, 779 n.10 (Tex. 2012) (citing BMC Software, 83 S.W.3d at 794); H.E.B., L.L.C. v. Ardinger, 369 S.W.3d 496, 513 (Tex. App.—Fort Worth 2012, no pet.). That is, because a trial court's conclusions of law are not binding on us, we will not reverse a trial court's judgment based on an incorrect conclusion of law when the controlling findings of fact support the judgment on a correct legal theory. Wise Elec. Coop., Inc. v. Am. Hat Co., 476 S.W.3d 671, 679 (Tex. App.—Fort Worth, no pet.).
III. Right to Establish the Children's Primary Residence
In his first issue, Jacob asserts that the trial court erred or abused its discretion by granting Anne the exclusive right to determine the primary residence of the children after finding and concluding that Anne had physically abused Jacob. In its conclusions of law, the trial court concluded that "[p]rior to the filing of the divorce, [Anne] intentionally committed abusive physical force against [Jacob]." Family code section 153.004(b) provides in pertinent part as follows:
There are no findings of fact that support this conclusion. However, Jacob testified that on the night of December 16, 2012, Anne pulled a knife on him and that she assaulted him on the morning of January 15, 2013. --------
It is a rebuttable presumption that the appointment of a parent . . . as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of . . . physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.Tex. Fam. Code Ann. § 153.004(b) (West 2014). Jacob asserts that the trial court made no conclusions of law that would overcome the presumption that Anne should not be designated as the parent who has the exclusive right to determine the children's primary residence.
When determining issues of conservatorship, possession, and access to a child, the best interest of the child shall always be the primary consideration of the court. Tex. Fam. Code Ann. § 153.002 (West 2014); In re C.A.P., Jr., 233 S.W.3d 896, 901 (Tex. App.—Fort Worth 2007, no pet.) ("Section 153.002 requires the court to always put the child's best interest first in matters of possession and access to the child."). "The trial court is vested with broad discretion to determine which conservator will have the exclusive right to establish the child's primary residence." Strong v. Strong, 350 S.W.3d 759, 765 (Tex. App.—Dallas 2011, pet. denied) (citing In re K.L.W., 301 S.W.3d 423, 428 (Tex. App.—Dallas 2009, no pet.)). The trial court is in a better position than a reviewing court to decide what will be in the child's best interest because it observed the parties and witnesses and their demeanors and had the opportunity to assess each parent's claims. Sano v. Greenlee, No. 02-10-00264-CV, 2011 WL 2436737, at *7 (Tex. App.—Fort Worth June 16, 2011, no pet.) (mem. op.) (citing Rubinett v. Rubinett, No. 2-08-021-CV, 2009 WL 1372936, at *2 (Tex. App.—Fort Worth May 14, 2009, pet. denied) (mem. op.)). We will not disturb the trial court's decision regarding the determination of which conservator will have the exclusive right to establish the child's primary residence absent an abuse of discretion. K.L.W., 301 S.W.3d at 428; D.G.G., 2009 WL 2470498, at *1.
Jacob asserts the trial court made no conclusions of law sufficient to overcome the rebuttable presumption he contends was created by section 153.004(b). But the trial court concluded that "[c]redible evidence was presented by [Anne] and her witnesses of a history of past physical abuse by [Jacob] against [Anne]" and that "[i]t is in the best interest of the children . . . that [Anne] have the right to designate the children's primary residence within Tarrant and contiguous counties." Jacob does not challenge these conclusions. Thus, we cannot say the trial court abused its discretion by awarding Anne the exclusive right to determine the children's primary residence. Accordingly, we overrule Jacob's first issue.
IV. Grounds for Divorce
In his second, third, and fourth issues, Jacob argues that the trial court erred or abused its discretion by failing to grant him a divorce on the grounds of adultery; the trial court erred or abused its discretion by failing to grant him a divorce on the grounds of cruelty; and the trial court erred or abused its discretion by granting Anne a divorce on the grounds of cruelty, or alternatively, the evidence was legally and factually insufficient to support granting a divorce to Anne on the grounds of cruelty.
A. Adultery
Jacob argues in his second issue that the trial court erred or abused its discretion by failing to grant him a divorce on the grounds of adultery because there was undisputed evidence that Anne committed adultery. The family code provides that "the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation." Tex. Fam. Code Ann. § 6.001 (West 2006) (emphasis added). The family code also provides that "[t]he court may grant a divorce in favor of one spouse if the other spouse has committed adultery." Id. § 6.003 (West 2006) (emphasis added). Adultery means the "voluntary sexual intercourse of a married person with one not the spouse." In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.); see Ayala v. Ayala, 387 S.W.3d 721, 733 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Adultery is not limited to actions committed before the parties separated. Ayala, 387 S.W.3d at 733; Bell v. Bell, 540 S.W.2d 432, 435 (Tex. Civ. App.—Houston [1st Dist.] 1976, no writ). Adultery can be shown by direct or circumstantial evidence. Newberry v. Newberry, 351 S.W.3d 552, 556 (Tex. App.—El Paso 2011, no pet.); S.A.A., 279 S.W.3d at 856. However, there must be clear and positive proof, and mere suggestion and innuendo are insufficient. S.A.A., 279 S.W.3d at 856.
The trial court granted Anne a divorce on the grounds of insupportability and cruelty. The trial court made no findings of fact or conclusions of law regarding adultery. Each party admitted at trial to having had an affair during the marriage, but Jacob denied that his affair was sexual. Even though there was evidence that Anne had an extramarital affair, the trial court was not required to grant Jacob a divorce on the grounds of adultery. The trial court could have concluded that the marriage should have been dissolved on the basis of Anne's adultery, but it did not. The family code assigns the divorce-ground determination to the discretion of the trial court. Applewhite v. Applewhite, No. 02-12-00445-CV, 2014 WL 787828, at *2 (Tex. App.—Fort Worth Feb. 27, 2014, no pet.) (mem. op.). Thus, we hold that the trial court did not abuse its discretion by not instead finding, or by not additionally finding, Anne's adultery as a ground for the divorce. Accordingly, we overrule Jacob's second issue.
B. Cruelty
In his third and fourth issues, Jacob argues that the trial court erred or abused its discretion by failing to grant him a divorce on the grounds of cruelty and by granting a divorce to Anne on the grounds of cruelty. The family code also provides that "[t]he court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable." Tex. Fam. Code Ann. § 6.002 (West 2006) (emphasis added). To be considered "cruel treatment," the conduct of the accused party must rise to such a level as to render the couple's living together insupportable. Id.; see Ayala, 387 S.W.3d at 733; Newberry, 351 S.W.3d at 557. "Insupportable," for purposes of "cruel treatment," means incapable of being borne, unendurable, insufferable, or intolerable. Ayala, 387 S.W.3d at 733; Henry v. Henry, 48 S.W.3d 468, 473-74 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Mere trivial matters or disagreements do not justify the granting of divorce for cruel treatment. Ayala, 387 S.W.3d at 733. Physical abuse will support granting a divorce on cruelty grounds. Newberry, 351 S.W.3d at 557.
Anne testified that Jacob began physically abusing her in November 2007, shortly after they were married in October 2007. In 2008, Jacob strangled her until she was nearly unconscious, body slammed her, and punched her in the face. Adrienne Hinojosa, Jacob and Anne's friend, testified that in 2008, she and her then-boyfriend went with them to a club in Houston. As they were leaving the club, Jacob and Anne started to argue. Hinojosa witnessed Jacob push Anne to the ground and spit on her. Hinojosa and her boyfriend hurried Jacob and Anne into their vehicle because the scene was drawing attention. Once in the car, Jacob was screaming at Anne, took Anne's phone, crushed it, and threw it at her. He then reached into the backseat, punched Anne in the face and slapped her across the face twice, causing her nose and her lip to bleed. Hinojosa and her boyfriend dropped Jacob off at a parking lot, and Anne went home with Hinojosa.
Anne testified that when she was pregnant with their first child in 2009, Jacob went to a bar with his friends and became intoxicated. Jacob's friend called Anne in the middle of the night, and she went to pick up Jacob from the bar. During the drive home, Jacob became angry and began punching Anne in the stomach and on the side of her head continuously while she was driving. She pulled over and demanded that he get out of the car. He exited the vehicle and began walking on the highway until the police arrested him for public intoxication. The next morning, Anne bailed him out of jail.
Jacob was a member of the United States Marine Corps and was deployed to Afghanistan for seven months in 2011. Anne said that she witnessed uncontrollable anger from Jacob almost daily after he returned from his deployment. Jacob was eventually diagnosed with posttraumatic stress disorder (PTSD) in June 2013 and was prescribed medication to help him sleep. Jacob testified that he could not sleep and suffered from survivor's guilt and anxiety. He started suffering from these symptoms before the parties' separation. He denied having any violent episodes since returning from Afghanistan or having any dramatic mood swings as a result of his PTSD. He also denied that PTSD had any negative effects on his relationship with his family or his children.
Anne testified that in October 2012, Jacob was angry at Anne and was "leaving [their home] in a rage." While she was bending down to pick up something from the floor, he "sideswiped [her] in the face," and she fell and lost consciousness. When she regained consciousness, Jacob was strangling her. Anne's sister, Carrie Turner, observed the bruises on Anne's face and neck that Jacob had caused and took photographs of them, and the photographs were admitted into evidence. Carrie testified that Anne told her what had happened and that Jacob admitted to Carrie that he had abused Anne on multiple occasions.
Anne testified that she was suffering from severe anxiety in December 2012 because Jacob's abuse was becoming more severe and that she feared for her children to the point of leaving with them in the middle of the night because of Jacob's abuse. Anne began taking Xanax prescribed to her mother without Jacob's knowledge. Jacob testified that while he was taking a final college exam the morning of December 6, 2012, Anne sent him a text message telling him that the children were with a neighbor and asking him to get her some Xanax because she was "shaking, crashing." When he arrived home, Anne was in a state of panic and crying; she asked him if he had brought her any Xanax. Jacob further testified that on the night of December 16, 2012, Anne pulled a knife on him and that she assaulted him on the morning of January 15, 2013.
In January 2013, Anne sought treatment for her anxiety. Her doctor prescribed medication, including Xanax, for anxiety, depression, and loss of sleep. But Anne never sought medical attention for the injuries she sustained as a result of Jacob's abuse because she was afraid of him.
Anne testified that she is afraid of Jacob. Jacob testified that he never hit Anne. He denied punching Anne while they were out with Hinojosa, as well as punching Anne in the face, body slamming her, strangling her, and punching her in the stomach while she was pregnant.
In support of his third issue, Jacob argues that the trial court erred or abused its discretion by not granting him a divorce on the grounds of cruelty because the trial court made a conclusion of law that Anne had intentionally committed abusive physical force against Jacob and because Jacob offered undisputed testimony that Anne pulled a knife on him. In his fourth issue, Jacob argues that the trial court erred or abused its discretion by granting Anne a divorce on the grounds of cruelty, or alternatively, the evidence was legally and factually insufficient to support granting Anne a divorce on the grounds of cruelty because there was no conclusion of law that Jacob committed abusive physical force against Anne. Although the trial court concluded that Anne had intentionally committed abusive physical force against Jacob, it also made fact findings regarding Jacob's physical abuse of Anne—which Jacob does not challenge and which are supported by legally and factually sufficient evidence—and concluded that credible evidence was presented by Anne and her witnesses of a history of past physical abuse by Jacob against Anne.
We have reviewed the record, and while there is evidence that Anne pulled a knife on Jacob in December 2012 and assaulted him in January 2013, there is also evidence of Jacob's continuing physical abuse of Anne throughout their marriage. The trial court could have concluded that the marriage should have been dissolved on the basis of Anne's cruelty towards Jacob, but it did not. Because the family code assigns the divorce-ground determination to the discretion of the trial court, see Applewhite, 2014 WL 787828, at *2, we hold that the trial court did not abuse its discretion by not instead finding, or by not additionally finding, Anne's cruelty as a ground for the divorce. Moreover, applying the applicable standards of review, we conclude that the trial court had sufficient information upon which to exercise its discretion in determining whether to grant Anne a divorce on cruelty grounds, and we hold that the trial court did not abuse its discretion by granting Anne a divorce on the grounds of cruelty. Accordingly, we overrule Jacob's third and fourth issues.
V. Jacob's Cruel Treatment Towards Himself
In its conclusions of law, the trial court concluded that "[Jacob] is guilty of cruel treatment toward [Jacob]." In his fifth issue, Jacob argues that the evidence was legally and factually insufficient to support this legal conclusion.
A trial court's conclusions of law may not be challenged for factual sufficiency, but we may review the legal conclusions drawn from the facts to determine whether the conclusions are correct. BMC Software, 83 S.W.3d at 794. Carrie testified that Jacob had admitted to her that he had punched himself in the face. Jacob denied punching himself in the face and denied admitting it to Carrie. Based on this evidence, we cannot say that the trial court's conclusion of law was erroneous. But even if it were, because the trial court nevertheless rendered the proper judgment, the error, if any, does not require reversal. See id. Thus, we overrule Jacob's fifth issue.
VI. Conclusion
Having overruled each of Jacob's five issues, we affirm the trial court's final decree of divorce.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE PANEL: GARDNER, MEIER, and GABRIEL, JJ. DELIVERED: April 21, 2016