Opinion
No. 09-09-00355-CV
Submitted on June 17, 2010.
Opinion Delivered August 5, 2010.
On Appeal from the County Court at Law Orange County, Texas, Trial Cause No. C-070183-D.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
The appellant, K.J. ("Father"), appeals from a final decree of divorce that was entered after a jury trial. Following all of the proceedings, the trial court awarded Father standard possession and also ordered him to pay child support. See TEX. FAM. CODE ANN. §§ 153.312, 153.314, 153.315, 153.317 (Vernon Supp. 2009). On appeal, Father argues that the evidence is factually insufficient to justify C.J.'s ("Mother") designation as the primary joint managing conservator and that the trial court erred by awarding him standard visitation. Father also claims he did not receive "effective assistance of counsel." We affirm the trial court's judgment.
To protect the privacy of the parties involved in this appeal, we identify them by their respective initials or by employing a familial title. See TEX. FAM. CODE ANN. § 109.002(d) (Vernon 2008).
Factual Background
After Mother and Father married, M.J. was born in June 2005. In February 2007, Mother separated from Father, and Mother and M.J. moved to Mother's family home. That same month, Mother filed a petition for divorce and asked to be designated as the conservator with the exclusive right to designate M.J.'s primary residence. Father filed an answer and a counter-petition, and he requested that the court designate him as the conservator with the exclusive right to designate M.J.'s primary residence. In March 2007, the trial court appointed Mother and Father joint temporary managing conservators and named Mother as the primary custodian only for the purpose of selecting M.J.'s daycare.
In April 2008, Father sought to modify the trial court's temporary orders. In his motion, Father asked the trial court to appoint him as the primary joint managing conservator with the exclusive right to designate M.J.'s primary residence and asked the court to award standard possession to Mother. At that point, the trial court modified the party's possession schedule, but it did not award either party the exclusive right to designate M.J.'s primary residence. In November 2008, the parties signed a mediation agreement resolving their property issues.
In February 2009, the trial court conducted a jury trial on the remaining disputed issue: whether Mother or Father should be appointed as the conservator with the exclusive right to designate M.J.'s primary residence. The jury heard evidence from several witnesses relevant to each parent's parenting skills, each parent's attentiveness to M.J.'s needs, each parent's lifestyle, and each parent's work history. On the disputed issue tried to the jury, the record contains evidence that is both favorable and unfavorable to each of the parents.
At the trial's conclusion, the jury awarded Mother the exclusive right to designate M.J.'s primary residence. See TEX. FAM. CODE ANN. § 153.134(b)(1) (Vernon Supp. 2009). The trial court then heard additional evidence relevant to the issues of access, possession, and child support. Subsequently, the trial court entered a decree granting Mother the right to designate M.J.'s primary residence, awarding Father standard possession, and ordering Father to pay child support. The final decree of divorce incorporates the jury's verdict, the trial court's rulings, and terms that are based on the parties' mediated settlement agreement. Father timely filed a motion for new trial and then filed this appeal.
Issue One
In issue one, Father asserts that the evidence is factually insufficient to support the jury's verdict naming Mother as the conservator with the exclusive right to designate M.J.'s primary residence. Father also argues that the trial court abused its discretion in awarding him standard visitation.
We review a trial court's determination of conservatorship under an abuse of discretion standard, and may reverse the trial court only if its decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). In a review applying an abuse of discretion standard, an allegation of factual insufficiency of the evidence is not an independent ground of error, but it is a relevant factor in assessing whether the trial court abused its discretion. See In re Marriage of Marris, No. 06-02-00186-CV, 2003 Tex. App. LEXIS 5975, at **5-6 (Tex. App.-Texarkana, July 15, 2003, no pet.) (citing In re Marriage of Bertram, 981 S.W.2d 820, 822 (Tex. App.-Texarkana 1998, no pet.); In re D.S., 76 S.W.3d 512, 516 (Tex. App.-Houston [14th Dist.] 2002, no pet.). "The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." TEX. FAM. CODE ANN. § 153.002 (Vernon 2008). Trial courts have wide latitude in determining the best interests of a minor child. Gillespie, 644 S.W.2d at 451.
In this case, the trial court followed the jury's recommendation when it granted Mother the right to designate M.J's primary residence. In evaluating whether that decision constitutes an abuse of discretion, we note that a trial court may not contravene a jury verdict that determines which joint managing conservator has the exclusive right to designate the primary residence of the child. TEX. FAM. CODE ANN. § 105.002(c)(1)(D) (Vernon Supp. 2009). A jury's findings underlying a conservatorship decision are subject to an ordinary factual sufficiency review, and in performing that review, we consider, weigh, and examine all of the evidence that supports or contradicts the fact-finder's determination. See Garcia v. Harding, No. 01-07-01049-CV, 2008 Tex. App. LEXIS 8785, at **8-9 (Tex. App.-Houston [1st Dist.] Nov. 20, 2008, no pet.). In determining whether evidence is factually sufficient to support a jury's verdict, we will set aside the jury's verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at *9 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).
Father argues that the evidence is factually insufficient to support the jury's verdict because Mother socializes too much, Mother committed adultery, Mother did not take care of the house while she and Father were married, and Mother has an inconsistent work history. In his brief, Father summarized portions of the trial testimony, including testimony that supports his arguments. However, Father never explains how the testimony upon which he relies constitutes the greater weight and preponderance of the evidence. A review of all of the evidence admitted during the trial reflects that the jury heard conflicting evidence about whether granting Mother or granting Father the right to designate the primary residence of M.J. would best serve the child's interest. For example, the jury heard testimony from Mother and from M.J.'s maternal grandmother that Mother offered M.J. a better living environment. Evidence that reflected questions about Mother's parenting skills was disputed. For instance, although the record does reflect that Mother sometimes socialized with her friends, she testified that she does not do so when she is with M.J. The jury could have also considered Mother's testimony that although she had been in a relationship since separating from Father, the relationship did not have a detrimental impact on her parenting skills or on the child's best interest.
While there was testimony that Father was a good caregiver and that M.J. seemed happy when with him, the jury also heard testimony about Father's business interests, about the way each parent cared for the child, and about the child's medical needs. From this testimony the jury could have reasonably inferred that naming Mother as the person with the right to designate M.J.'s primary residence would better serve the child's best interest. Also, the jury heard testimony that M.J. seemed to be happy in the care of both parents. Furthermore, a marriage counselor testified that Father seemed to be the more responsible of the parents, but he also explained that neither of M.J.'s parents caused any concern for M.J.'s safety. Finally, the jury heard testimony that while the parties were together, Mother cared for M.J. while Father took care of his animals and his land.
Juries are to decide "the credibility of the witnesses and the weight to give their testimony. They may choose to believe one witness and disbelieve another. Reviewing courts cannot impose their own opinions to the contrary." City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (footnote omitted). Here, after hearing the witnesses testify and observing their demeanor, the jury could reasonably have found some of the witnesses more credible than others or given some of the testimony more weight. See id. After examining all of the evidence in this case, we conclude the jury's verdict granting Mother the exclusive right to designate M.J.'s primary residence is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176. The jury had sufficient facts to make a determination on the issue, and the trial court, under these circumstances, was statutorily required to defer to the jury's decision. See TEX. FAM. CODE ANN. § 105.002(c)(1)(D). We further conclude that the trial court did not abuse its discretion in entering a judgment consistent with the jury's verdict on the issue of designating M.J.'s primary residence.
Father also argues that it was an abuse of discretion for the trial court to award him standard visitation because the evidence reflects that a "50/50" split in custody is in the best interest of the child. Father contends that according to Mother's testimony, it was clear that she thought that equal custody was in M.J.'s best interest. Mother testified that she believes M.J. should have an ongoing relationship with Father, but that she should be given the right to designate M.J.'s primary residence. While Mother testified that they should try to split their time with M.J. "as equally as possible[,]" she also said that extended standard possession "would be best."
"Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators." TEX. FAM. CODE ANN. § 153.135 (Vernon 2008). The trial court did not abuse its discretion in denying Father a possession period that equates to the possession period it granted to Mother. In this case, Father's own testimony that a "50/50" split in custody is "too harsh and it's proven too hard on the child" further supports the trial court's division of the periods of possession. After reviewing the record, we do not find that any unusual circumstances exist to indicate that a standard possession order is inappropriate. See TEX. FAM. CODE ANN. § 153.253 (Vernon 2008). We hold that the trial court could have reasonably concluded that the standard possession order was in the child's best interest. See id. § 153.252 (Vernon 2008) (providing a rebuttable presumption that the standard possession order is in the best interest of the child and provides reasonable minimum possession for a parent named joint managing conservator). The trial court's award of standard possession to Father does not constitute an abuse of discretion. We overrule issue one.
Issue Two
In issue two, Father complains that he was denied the effective assistance of counsel. Father cites authority to support a claim that the right to effective counsel extends to cases involving the termination of parental rights, but cites no cases supporting a claim that a constitutional or statutory right to appointed counsel extends to cases involving the division of periods of possession between two parents who have been named joint managing conservators. See In the Interest of M.S., 115 S.W.3d 534, 544 (Tex. 2003); see also TEX. FAM. CODE. ANN. § 107.013 (Vernon Supp. 2009) (affording right to counsel to termination proceedings). In the absence of a constitutional or statutory provision granting a right to appointed counsel, we decline to extend a right to effective assistance of counsel to a dispute resolving the division of possession between joint managing conservators. See Chrisman v. Chrisman, 296 S.W.3d 706, 707 (Tex. App.-El Paso 2009, no pet.) (declining to extend effective assistance rights to divorce proceeding). We conclude that Father has no right to receive appellate review of the complaint he advances in issue two. We overrule issue two.
Conclusion
We conclude that Father has not demonstrated that the trial court committed reversible error. We affirm the trial court's judgment.
AFFIRMED.