Opinion
No. 05-08-01563-CV
Opinion Filed October 20, 2009.
On Appeal from the 86th Judicial District Court Kaufman County, Texas, Trial Court Cause No. 72326-86.
Before Chief Justice THOMAS and Justices O'NEILL and MURPHY.
MEMORANDUM OPINION
Appellant Jamien Pegram (Father) challenges the legal and factual sufficiency of the evidence to support the trial court's finding that Khaliyah Neloms (Mother) should be sole managing conservator of J.N. Father contends the trial court erred by failing to consider Mother's neglect of J.N. and by considering false testimony that Father committed domestic violence. Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
Although the original petition is not in the record, Mother filed a suit affecting the parent-child relationship seeking to establish Father's paternity of J.N. and to require Father to pay child support. Father failed to appear at trial. Mother, the only witness at trial, testified that she was J.N's biological mother and Father was J.N.'s biological father. Mother also testified Father physically assaulted her in October 2006 and that J.N. observed the assault. Mother stated she was injured by the assault and that the assault occurred within two years of the filing of the petition in this case. Mother testified it would be in J.N.'s best interest for Mother to be named sole managing conservator. The trial court entered a final order establishing the paternity of J.N., naming Mother sole managing conservator of J.N., allowing Father supervised visitation with J.N., and requiring Father to pay child support.
In her brief, Mother requests that we increase Father's child support obligation. At trial, Mother testified she did not know how much Father earned and requested the trial court award child support based on minimum wage. The trial court granted the child support requested by Mother. Because Mother did not obtain an adverse ruling from the trial court, she has preserved nothing for our review. Tex. R. App. P. 33.1
On appeal, Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding that Mother should be the sole managing conservator of J.N. Most appealable issues in a family law case, including the issue in this case, are evaluated under an abuse of discretion standard. In re B.M., 228 S.W.3d 462, 464 (Tex. App.-Dallas 2007, no pet.) (orders regarding child custody, control, possession, and visitation reviewed for abuse of discretion). The trial court's judgment will only be disturbed where the record as a whole shows that the trial court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex. App.-Dallas 2006, no pet.). A trial court abuses it discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.-Dallas 2009, no pet.)
Because the traditional sufficiency standard of review overlaps with the abuse of discretion standard in family law cases, legal and factual sufficiency are not independent grounds of error but are relevant factors in our assessment of whether the trial court abused its discretion. In re A.B.P., 291 S.W.3d at 95. To determine whether the trial court abused its discretion because the evidence is insufficient to support its decision, we consider whether the trial court (i) had sufficient evidence upon which to exercise its discretion and (ii) erred in its exercise of that discretion. Id.; Vardilos v. Vardilos, 219 S.W.3d 920, 921 (Tex. App.-Dallas 2007, no pet.). We conduct the applicable sufficiency review with regard to the first question. A.B.P., 291 S.W.3d at 95; Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.-Dallas 2005, pet. denied). We then proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Moroch, 174 S.W.3d at 857.
Section 153.131 of the family code establishes a presumption in favor of the appointment of the parents as joint managing conservators of a child. Tex. Fam. Code Ann. § 153.131 (Vernon 2008). However, this presumption is removed if there is a history of family violence involving the parents. Id. § 153.131(b). Further, when determining conservatorship, the trial court is required to consider the intentional use of abusive physical force by one parent against the other parent within the two-year period preceding the filing of the suit. Tex. Fam. Code Ann. § 153.004(a) (Vernon 2008). The trial court may not appoint a parent as joint managing conservator if credible evidence is presented of a history or pattern of past or present physical abuse by the parent against the other parent. Id. § 153.004(b); Garner v. Garner, 200 S.W.3d 303, 310 (Tex. App.-Dallas 2006, no pet.). One incident of physical violence can constitute a history of physical abuse. Alexander v. Rogers, 247 S.W.3d 757, 762-63 (Tex. App.-Dallas 2008, no pet.); In re R.T.H., 175 S.W.3d 519, 521 (Tex. App.-Fort Worth 2005, no pet.).
The party requesting to be appointed sole managing conservator of a child has the burden to rebut the statutory presumption that joint managing conservatorship would be in the best interest of the child. Hinkel v. Hinkle, 223 S.W.3d 773, 779 (Tex. App.-Dallas 2007, no pet.). Here, Mother testified that Father physically assaulted her in October 2006. Father was not present at trial and offered no evidence the assault did not occur. Although Father contends on appeal that Mother's testimony was false, the trial court was in the best position to determine the credibility of Mother's testimony. See id. at 778; Garner, 200 S.W.3d at 310.
Father also contends the trial court erred by not considering evidence that Mother neglected J.N. However, the "evidence" Father relies on are Father's unsworn statements at a pretrial hearing on Mother's motion for sanctions that Mother had refused to allow Father access to J.N. The record does not reflect any evidence was offered at trial regarding any conduct by Mother that would constitute neglect of J.N.
Because there was credible evidence of a history of physical abuse by Father toward Mother, the trial court did not err by naming Mother sole managing conservator of J.N. We overrule Father's two issues and affirm the trial court's judgment.