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holding that trial court did not abuse its discretion by appointing joint managing conservators because "no evidence was presented that credibly indicated even one instance of physical abuse, much less a history or pattern"
Summary of this case from C.C. v. L.C.Opinion
No. 04-01-00849-CV
Delivered and Filed: August 6, 2003
Appeal From the 25th Judicial District Court, Guadalupe County, Texas, Trial Court No. 01-0425-CV, Honorable Gary L. Steele, Judge Presiding.
AFFIRMED
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Rebecca Faye McCoy-Danklefs ("Rebecca") appeals a final decree of divorce. Rebecca asserts two issues on appeal, contending: (1) the trial judge erred in failing to recuse himself; and (2) the evidence does not support the appointment of Robert as a joint managing conservator and section 153.004 of the Texas Family Code prohibits the appointment. We affirm the trial court's judgment.
Background
Rebecca filed for divorce on March 21, 2001. Temporary orders were entered into by the parties which provided for alternate possession of their child, Skylar, during the pendency of the case. Robert filed a counter-petition for divorce and asked the trial court to name him sole managing conservator of Skylar. Amended temporary orders were entered by the trial court on May 10, 2001, which Rebecca violated by failing to return Skylar to Robert. As a result, Robert filed a Petition for Writ of Habeas Corpus and Motion for Contempt against Rebecca. After a hearing on the Motion for Contempt, the trial court granted Robert possession of Skylar until the divorce was final.
The primary issue at trial was custody of Skylar. Both sides presented witnesses who testified to the parenting skills of the parties, the medical condition, treatment and needs of Skylar, and the fitness of the parties to care for and nurture Skylar. Several witnesses testified about alleged incidents of spousal physical abuse. After reviewing all of the testimony, evidence and exhibits, the trial court appointed Rebecca and Robert as joint managing conservators.
After the trial, a hearing was set for entry of the Final Decree of Divorce. Rebecca alleges that the day before the hearing, she faxed an unverified Motion for Recusal to the Guadalupe County courthouse; however, the motion is not contained in the clerk's record, and notice of the motion was never delivered to Robert. The trial court signed the Final Decree of Divorce and entered Findings of Fact and Conclusions of Law. After entering the Findings of Fact and Conclusion of Law, the trial judge recused himself from the case.
RULE 18a
Rebecca argues that her motion presented plausible grounds for a recusal under Rules 18b(2)(a)-(b) on the grounds of bias and partiality against Rebecca. Rebecca further argues that under Rule 18a the trial judge should not have taken further action in the case once the recusal motion was filed, but should have recused himself immediately or referred the motion to the administrative judge. Rebecca admits that the motion was procedurally defective but argues that the defect did not give the trial judge the option to delay ruling on the motion until after deciding the case, especially since the motion was filed by a pro se litigant. We disagree.
We note that error with regard to the motion to recuse has not been preserved because no motion for recusal is contained in the clerk's record; therefore, our record contains no evidence that such a motion was ever filed. Additionally, even if Rebecca had filed the motion attached to her brief, the motion did not conform to Rule 18a in at least three regards: 1) it was not timely filed; 2) it was not verified; and 3) notice was not given to the other party involved. Rebecca's failure to comply with Rule 18a waives, her complaint of a trial court's failure to recuse. See Barron, 2003 WL 1989503, at *2; Lewis, 2003 WL 124250, at *4; Spigener,80 S.W.3d at 180; Autry, 646 S.W.2d at 588. Rebecca argues that she should be granted a degree of latitude for her non-compliance with Rule 18a because she filed the motion pro se; however, the courts have consistently held pro se litigants to the same standard in filings as litigants represented by counsel. Shull v. United Parcel Serv., 4 S.W.3d 46, 52-53 (Tex.App.-San Antonio 1999, pet. denied); Chandler v. Chandler, 991 S.W.2d 367, 378-79 (Tex.App.-El Paso 1999, pet. denied). Since there is no recognized exception to the Rule 18a provisions for pro se litigants, Rebecca's non-compliance also bars her complaint on appeal.
Joint Managing Conservator
In her second issue, Rebecca argues that the trial court did not enforce section 153.004 of the Family Code because it appointed Robert as a joint managing conservator even though Rebecca presented evidence of spousal abuse. Rebecca also contends that the trial court's decision to appoint Robert as a joint managing conservator was not supported by the evidence. We disagree.
The matter of determining who should be appointed managing conservator is left to the discretion of the trial court. Martinez v. Molinar, 953 S.W.2d 399, 403 (Tex.App.-El Paso 1997, no writ); Altamirano v. Altamirano, 591 S.W.2d 336, 337-38 (Tex.Civ.App.-Corpus Christi 1979, no writ). The trial court is in the best position to determine what will be in the best interest of a child, since the trial court faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent. Martinez, 953 S.W.2d at 403; Altamirano, 591 S.W.2d at 337-38.
While the trial court is given wide latitude in determining custody issues, the Texas Family Code places certain restrictions on the trial court's discretion when there are allegations of abuse. Section 153.004 of the Texas Family Code provides that the trial court is to consider evidence of the intentional use of abusive physical force by a party against the party's spouse, and further provides that the trial court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present physical abuse by one parent directed against the other parent. Tex. Fam. Code Ann. § 153.004(b) (Vernon 2002). The term "history or pattern" is not defined in the Texas Family Code; therefore, we give the term its ordinary meaning. Tex. Gov't Code Ann. § 311.011 (Vernon 2002).
Nothing in the record undisputedly shows a history or pattern of violence. Excluding the interested parties' testimony, no evidence was presented that credibly indicated even one instance of physical abuse, much less a history or pattern. The trial court could have determined that Rebecca's testimony regarding the history of physical abuse was not credible. Therefore, the trial court was not required to exclude Robert from joint managing conservatorship under section 153.004.
Section 153.131 of the Family Code mandates that unless the court finds that appointment of both 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, both parents should be appointed as joint managing conservators of the child. Tex. Fam. Code Ann. § 153.131 (Vernon 2002). There is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. Id. Absent proof showing that appointing Robert as a joint managing conservator would be detrimental to Skylar's overall well-being, the trial court was left with the presumption that it was in the child's best interest to grant joint managing conservatorship. Viewing the record as a whole, we conclude that the evidence was sufficient to support the trial court's decision to appoint Robert as a joint managing conservator.
Conclusion
The trial court's judgment is affirmed.