Summary
reversing non-specific order that prevented father from seeing daughter "until a therapist recommends visitation"
Summary of this case from Pentland v. PentlandOpinion
No. 04-05-00314-CV
Delivered and Filed: January 25, 2006.
Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-07202, Honorable Barbara Hanson Nellermoe, Judge Presiding.
Reversed and Rendered in Part; Reversed and Remanded in Part.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
William R. Hale, Jr. appeals the trial court's judgment granting him conditional visitation with his daughter, ordering him to pay additional contingent child support, and ordering him to reimburse his wife, Lois Hale, for community funds expended during their marriage. The trial court's judgment is reversed. Judgment is rendered deleting the divorce decree's provisions relating to the payment of contingent child support and reimbursement. The visitation issue is remanded to the trial court for further clarification.
Background
William and Lois were married in the 1970s and divorced in 1998. They remarried in 1999 and William filed for divorce in May of 2004. During their marriage they had one daughter, A.H., who was born in 1992. Although the record is not specific, it appears that sometime in 2003 the Texas Department of Family and Protective Services was referred to the Hale home to investigate allegations that William had sexually abused his stepdaughters, Lois's daughters by a previous marriage, some twenty years ago. No criminal charges were filed against William nor are any pending. Fearing that A.H. had been or would be abused, the Department strongly recommended that William move out of the family home and have no contact with A.H. until a therapist recommended otherwise. At the divorce hearing, testimony was presented by several therapists that William's behavior toward A.H. was inappropriate. William admitted that he had abused his stepdaughters in the past, but that he had not done so to A.H. At the conclusion of the testimony, the trial court granted the divorce and named Lois sole managing conservator of A.H. William was appointed possessory conservator with no contact allowed until A.H. reaches the age of eighteen or until a therapist recommends visitation. William was ordered to pay child support according to the statutory guidelines and, in addition, he was ordered to pay $1,000 per month if Lois and A.H. were forced to move out of the family home. William was also ordered to reimburse Lois for half of the estimated $50,000 he tithed to his church during the six years of their marriage.
William had three stepdaughters; he admitted to abusing two of them. There was sparse testimony regarding the abuse during the hearing. A caseworker with the Department testified that William had admitted to her that there had "been some previous sexual indiscretions, including exposing himself to [the] children." William testified that there was inappropriate touching and exposure, but "never any penetration."
At the divorce hearing, both parties and their attorneys stated that the length of the Hale marriage was "six years," but an order filed with the trial court in 2005 shows that William and Lois remarried on October 26, 1999, making their second marriage about five years and two months long.
Discussion
In his first issue, William contends that the trial court abused its discretion when it ordered no visitation with A.H. unless recommended by a therapist. The trial court has wide discretion with respect to custody, control, possession, and visitation matters involving the child. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). "This discretion is wisely vested in the trial judge in these matters because [the trial judge] faces the parties and the witnesses, observes their demeanor, views their personalities and senses the forces and powers which motivate them." Fair v. Davis, 787 S.W.2d 422, 431 (Tex.App.-Dallas 1990, no writ), citing Maixner v. Maixner, 641 S.W.2d 374, 376 (Tex.App.-Dallas 1982, no writ). An appellate court will not reverse the trial court's decision regarding visitation absent a clear abuse of discretion. See In the Interest of M.R., 975 S.W.2d 51, 53 (Tex.App.-San Antonio 1998, pet. denied); Villaseñor v. Villaseñor, 911 S.W.2d 411, 419 (Tex.App.-San Antonio 1995, no writ.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The best interest of the child is always the primary consideration in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code Ann. § 153.002 (Vernon 2002). There is a presumption that the standard possession order is in the best interest of the child, but this presumption may be rebutted. Tex. Fam. Code Ann. § 153.252 (Vernon 2002).
But see Justice Puryear's concurring opinion in In re J.R.D., where he expresses his belief that the current standards used in making and reviewing possession and access orders do not reflect the legislative mandate regarding parental access, nor do they adequately respect the scope of the liberty interest enjoyed by a parent in rearing his or her own children. 169 S.W.3d 740, 745 (Tex.App.-Austin 2005, pet. denied) (Puryear, J., concurring).
A.H. never made an outcry that her father physically or sexually abused her, and there is no medical evidence that she had been assaulted; however, testimony was presented at the hearing that led the trial court to conclude that visitation with her father was not in A.H.'s best interest. Susan Testa, a caseworker with the Department, testified that William admitted to her, without remorse, that there had been some sexual indiscretions with his stepdaughters. Before the divorce was granted, the Department referred William to counseling as a requirement for visiting his daughter, but he stopped attending after four therapy sessions. When asked why William should not be allowed to contact his daughter, Testa replied, "because there is risk [of abuse] and there should have been continued treatment." Shannon Peck, the therapist for A.H., testified that A.H. exhibits behavior consistent with those found in children who have experienced vicarious abuse or are in the grooming stages of sexual abuse, such as confusion about the roles and boundaries of parents. In addition, Peck stated that A.H. is "very definite" about not wanting to have contact with her father at this time. Moreover, Peck described William as an "incest abuser" and recommended that he have no contact with A.H. based on a long pattern of abuse of his stepchildren. Sue Jericho, Lois's therapist, testified that she was concerned that A.H. would be sexually abused if allowed to visit with her father. Jericho also emphasized that A.H. does not want to see her father.
William testified that upon filing for divorce, his therapist told him there was no longer a need to attend therapy because the goal of the sessions was family reunification.
William argues that a court cannot appoint a parent as possessory conservator, yet deny all access to the child. See In re Walters, 39 S.W.3d 280, 286-87 (Tex.App.-Texarkana 2001, no pet.) (noting that a court cannot conclude that access, even restricted access, would endanger the physical or emotional welfare of the child, because such a conclusion would prevent the trial court from appointing the parent possessory conservator); see also Tex. Fam. Code Ann. §§ 153.191, 153.193 (Vernon 2002). We agree that a complete denial of access should be rare. A parent appointed possessory conservator should at least have periodic visiting privileges with their child and should not be denied such, except in extreme circumstances. See Allison v. Allison, 660 S.W.2d 134 (Tex.App.-San Antonio 1983, no writ); Liddell v. Liddell, 29 S.W.2d 868 (Tex.Civ.App.-San Antonio 1930, no writ); Thompson v. Thompson, 827 S.W.2d 563, 569 (Tex.App.-Corpus Christi 1992, writ denied); Anderson v. Martin, 257 S.W.2d 347 (Tex.Civ.App.-Amarillo 1953, writ ref'd n.r.e.); and Tuel v. Tuel, 252 S.W.2d 203 (Tex.Civ.App.-Fort Worth 1952, no writ). Denial of access must be limited to those situations where the parent's access is not in the best interest of the child. Walters, 39 S.W.3d at 287; Tex. Fam. Code Ann. § 153.193 (Vernon 2002). This case, however, is distinguishable from Walters because William may see his daughter upon the recommendation of a therapist.
According to the testimony presented at the divorce hearing, the trial court concluded that it was in A.H.'s best interest not to visit with her father until a therapist recommended otherwise. Although the record supports the trial court's conclusion, the order itself is insufficient to ensure that William's limited ability to visit A.H. is adequately protected. The order does not name a therapist or provide any guidelines to ensure that the best interests of the child are protected in these circumstances. If a trial court determines that it is in the best interest of the child to place restrictions or conditions on a conservator's rights of possession and access, then it is the court's responsibility to specifically define those terms in its decree. In re A.P.S., 54 S.W.3d 493, 499 (Tex.App.-Texarkana 2001, no pet.). The judgment must state in clear and unambiguous terms what is required for the conservator to comply, and the terms must be specific enough to allow the conservator to enforce the judgment by contempt. See Ex Parte Brister, 801 S.W.2d 833, 834 (Tex. 1990); In re A.P.S., 54 S.W.3d at 498; Roosth v. Roosth, 889 S.W.2d 445, 452 (Tex.App.-Houston [14th Dist.] 1994, writ denied). Although there has been no action yet to enforce this judgment, William could not successfully enforce this judgment by contempt because the judgment does not meet the standards for enforceability. William's first issue is sustained.
In his second issue, William argues that the trial court abused its discretion in ordering him to pay an additional $1,000 a month in child support if Lois and A.H. are evicted from the family home. Issues regarding the payment of child support are reviewed under an abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re M.P.M., 161 S.W.3d 650, 654 (Tex.App.-San Antonio 2005, no pet.). The trial court ordered William to pay $642.01 per month in child support, according to the statutory guidelines. See Tex. Fam. Code Ann. § 154.125 (Vernon 2002). An asterisk inserted in the divorce decree after "$642.01 per month" corresponds to the following language: "If Respondent/Wife and Child are evicted/leave from [the current family home], then, as an additional obligation of child support, Petitioner is ordered to pay an additional $1000.00 per month in child support." The Findings of Fact state that "expert testimony showed that it was in the best interest of the child not to change residences and the court ordered that the present living conditions be continued. Should eviction occur, Petitioner was ordered to pay a sum of $1,000.00 a month as additional child support, so Respondent and the child could find appropriate residence in the same neighborhood." At the hearing, William testified that his parents own the home that he and Lois have lived there for the past 27 or 28 years. William has no ownership interest in the home and his parents even pay the property taxes. The court heard testimony from Lois and from A.H.'s therapist that moving from the family home would be very disruptive for A.H. William now resides in an apartment and allows Lois and A.H. to stay in the home. He testified that if it were up to him, he would allow his wife and daughter to stay indefinitely, but since his parents own the home, he has "no say." Lois speculated as to the value of homes in the area, testifying, "a house that's — two or three houses, I think three houses up from us, rents for a thousand a month." The general rule is that judgments must not be conditional or contingent. Hill v. Hill, 404 S.W.2d 641, 643 (Tex.Civ.App.-Houston 1966, no writ). "[A] judgment must be certain and definite. The validity and binding force of a judgment must depend upon facts existing at the time of its rendition. A judgment may not rest upon what may or may not occur after its rendition, and must take its validity from the action of the court and not from what persons may or may not do after the court has rendered the judgment." Tully v. Tully, 595 S.W.2d 887, 888 (Tex.Civ.App.-Austin 1980, no writ) (holding that it was error to appoint conservators and order child support for an unborn child). We do not find that the child support order in this case is sufficiently definite. William has no way of knowing if he will be required to pay $642.01 per month or $1,642.01 per month because Lois may or may not be evicted from the family home in the future. In the event that Lois and A.H. are evicted from the home in the future, Lois may petition the trial court for modification. See Tex. Fam. Code Ann. § 156.401 (Vernon 2002) (court may modify child support order if the circumstances of the child or a person affected by the order have materially and substantially changed since the order's rendition or if it has been three years since the order was rendered and the monthly amount of the child support award differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines). William's second issue is sustained.
Lois incorrectly argues that we do not have jurisdiction over this issue because it is not "ripe" for adjudication. A judgment or order is final for purposes of appeal if it actually disposes of all pending parties and claims before the court. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The divorce decree signed by the trial court in this case was a final, appealable order over which we have jurisdiction.
Finally, William complains that the trial court abused its discretion by ordering him to reimburse Lois $25,000 for money he tithed to his church during the marriage. William's church requires all of its members to tithe ten percent of their annual gross income to the church. On the third and sixth year of a seven-year cycle, church members tithe thirty percent of their annual gross income. The trial court ordered William to reimburse Lois $25,000, payable over a five-year period, as compensation for half of the approximately $50,000 that he tithed to his church during the period of their second marriage. William testified that except for the years that he left the church, he and Lois had always tithed money to the church, and that all members were required to do so. Since their remarriage in 1999, Lois did not join the church and objected to the tithing because it left her little spending money.
William testified that both he and Lois were involved with the World Wide Church of God, but they left the church for eight or nine years due to a change in church leadership. William returned to the church, renamed the Philadelphia Church of God, by himself.
A trial court may award a money judgment to one spouse against the other in order to achieve an equitable division of the community estate, but only as a means for the wronged spouse to recoup the value of his or her share of the community estate lost through the wrongdoer spouse's actions. See Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998). A presumption of constructive fraud arises when one spouse disposes of the other spouse's one-half interest in community property without the other's knowledge or consent. See Zieba v. Martin, 928 S.W.2d 782, 789 (Tex.App.-Houston [14th Dist.] 1996, no writ). In the absence of fraud on the other spouse's rights, a spouse has the right to control and dispose of community property subject to his or her sole management. Massey v. Massey, 807 S.W.2d 391, 401 (Tex.App.-Houston [1st dist.] 1991), writ denied, 867 S.W.2d 766 (Tex. 1993). Accordingly, William had the right to dispose of his income by tithing in the absence of fraud, so long as the disposition was fair to Lois. See id. The court will consider three primary factors of "fairness" in reviewing one spouse's claim of constructive fraud against the other. Massey, 807 S.W.2d at 402. The factors to be considered are the size of the property disposed of in relation to the total size of the community estate; the adequacy of the estate remaining to support the other spouse after the disposition; and the relationship of the parties involved in the transaction or, in the case of a gift, of the donor to the donee. Id.
Upon applying these factors, we first note that the amount of money William tithed to his church was not necessarily disproportionate to the total size of the community estate. William grossed $50,000 a year, which equates to $300,000 over a six-year period. During that same time, he tithed $50,000 to his church, which equates to one-sixth of the total community estate. Second, there was no proof that the Hales' estate was inadequate to support the family after William's tithes were paid. Although Lois claims that "the church took all the money," she testified that she had enough money to pay the bills and buy food. Her only complaint is that she had wanted to put her daughter in private school, but there was not enough money to do so. However, there was testimony by A.H.'s therapist that A.H. is very happy at her current school and would not want to leave it. Finally, the relationship between William and his church was clearly that of parishioner and parish. There is no doubt that all of the tithing money went to the church. In most cases where a court has ordered reimbursement for wasted community assets, it was because money was spent by a husband for the benefit of his paramour. See, e.g., Loaiza v. Loaiza, 130 S.W.3d 894 (Tex.App.-Fort Worth 2004, no pet.); Grossnickle v. Grossnickle, 935 S.W.2d 830 (Tex.App.-Texarkana 1996, writ denied); and Ramirez v. Ramirez, 873 S.W.2d 735 (Tex.App.-El Paso 1994, no writ); but see Beard v. Beard, 49 S.W.3d 40, 64 (Tex.App.-Waco 2001, no pet.) (holding trial court did not abuse its discretion in finding that husband who admitted to going to strip clubs on a weekly basis for two years did not waste community assets).
One spouse may make moderate gifts of community property for just causes; however, excessive or capricious gifts made with intent to defraud the other spouse may be set aside as a constructive fraud. See Fanning v. Fanning, 828 S.W.2d 135, 148 (Tex.App.-Waco 1992), aff'd in part, rev'd in part on other grounds, 847 S.W.2d 225 (Tex. 1993) (holding that husband who mailed a significant amount of money to charitable organizations several months before divorce trial unfairly disposed of community property). There is no evidence that William intended to defraud Lois by contributing money to his church. Lois testified that she knew that all of the tithing money "went to the church . . . for the church's purpose." Furthermore, William's contributions cannot be said to be excessive given that he tithed the standard amount each year. William's third issue is sustained.
Conclusion
The trial court's judgment is reversed. Judgment is rendered deleting the following provisions from the Final Decree of Divorce:
*The Court finds the current family home at 434 Furr Drive, San Antonio, Texas is not community property. If Respondent/Wife and Child are evicted/leave from this residence at 434 Furr Drive, then, as an additional obligation of child support, Petitioner is ordered to pay an additional $1000.00 per month in child support.Tithing Judgment
The Court finds Petitioner tithed during the marriage to his church. The Court orders Petitioner to reimburse Respondent for tithes paid during the marriage. The Court grants judgment to Respondent in the amount of $25,000.00. It is ordered that Petitioner pay to Respondent in five (5) annual installments the sum of $5,000.00 until the judgment is paid in full beginning with the year 2005.
The cause is remanded to the trial court for further clarification of William's visitation rights. The trial court's judgment is affirmed in all other respects.