Opinion
05-23-00309-CV
04-18-2024
IN THE INTEREST OF I.J., A CHILD
On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-20-10122
Before Justices Reichek, Carlyle, and Miskel
MEMORANDUM OPINION
CORY L. CARLYLE, JUSTICE
Mother and Father married in 2017 and had one child together, I.J. Father petitioned for divorce in 2020, and mother counter-petitioned for divorce. The trial court conducted a bench trial in December 2022, after which it granted the parties a divorce on grounds of insupportability, found that Mother had a history of family violence or neglect, and issued a final divorce decree naming Father I.J.'s sole managing conservator. Mother appeals, and we affirm in this memorandum opinion. See Tex. R. App. P. 47.4.
Mother first argues the trial court abused its discretion by granting a divorce because the evidence did not sufficiently support findings that the marriage was insupportable or that the parties met the residency and domicile requirements of family code section 6.301. But Mother's counter-petition judicially admitted both that the marriage was insupportable and that the parties met the residency and domicile requirements. Thus, Mother cannot challenge the divorce decree on that basis. See In re K.J.B., No. 05-21-01000-CV, 2023 WL 2237081, at *3 (Tex. App.- Dallas Feb. 27, 2023, no pet.) (mem. op.) ("A statement in the petition for divorce that the petitioner satisfies the residency and domicile requirements is considered a judicial admission in the divorce and obviates the need for any evidence on that issue."); McCaskill v. McCaskill, 761 S.W.2d 470, 472 (Tex. App.-Corpus Christi- Edinburg 1988, writ denied) ("Admissions in trial pleadings are regarded as judicial admissions in the case in which that pleading is filed, require no proof of the admitted fact and authorize the introduction of no evidence to the contrary. . . . In the present case, appellant's petition serves as a judicial admission and a substitute for evidence of the grounds of divorce she alleges. She cannot now challenge the sufficiency of the evidence to support the divorce granted by the trial court.").
Mother next contends the trial court abused its discretion by appointing Father as I.J.'s sole managing conservator because: (1) the evidence does not sufficiently support a finding that she had a history of family violence or neglect that would rebut the presumption that she should be a managing conservator; and (2) the evidence does not sufficiently support a finding that it was in I.J.'s best interest to appoint Father, rather than her, as I.J.'s sole managing conservator. "Trial courts have wide discretion to determine a child's best interest, including issues of custody, control, possession and visitation." In re A.E.E., No. 05-18-00210-CV, 2019 WL 1552450, at *2 (Tex. App.-Dallas Apr. 10, 2019, no pet.) (mem. op.). Thus, we will not reverse a trial court's determination of conservatorship unless "a review of the entire record reveals the trial court's decision was arbitrary or unreasonable." Id. A trial court does not abuse its discretion "as long as some evidence of a substantive and probative character exists to support" its decision. Id. In determining whether the trial court abused its discretion, we "view the evidence in the light most favorable to the trial court's decision and indulge every legal presumption in favor of its judgment." Id.
Subject to limited statutory exceptions, the trial court must appoint at least one parent as a managing conservator of the child unless it finds that the appointment "would significantly impair the child's physical health or emotional development." Tex. Fam. Code § 153.131(a). The trial court must also presume that appointing both parents as managing conservators is in the child's best interest unless evidence is presented to rebut that presumption. In re A.E.E., 2019 WL 1552450, at *3 (citing Tex. Fam. Code § 153.131(a), (b)). "A finding of a history of family violence involving the parents of a child removes" the presumption. Tex. Fam. Code § 153.131(b). The family code defines "family violence" as "an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself." Id. § 71.004(1).
With respect to the family violence finding against Mother, Father testified that Mother was violent towards him and that Mother had a history of abusing her eldest daughter since she was a child in El Salvador. He said that, at one point, the daughter had to move in with her father in El Salvador because Mother assaulted her and caused injuries that required surgery. He further testified that in the week before he and Mother separated, Mother hit the daughter-who at this point was an adult and living with the couple-and caused bruising to her face. According to Father, the daughter eventually moved in with his parents because she did not feel safe living with Mother.
Although Mother denied ever abusing her daughter, the trial court was free to credit Father's testimony, which is at least "some evidence of a substantive and probative character" supporting a conclusion that Mother had a history of family violence against her daughter. In re A.E.E., 2019 WL 1552450, at *2. Thus, the trial court did not abuse its discretion by finding that Mother had a history of family violence that removed the presumption in favor of appointing her as a managing conservator.
Father also testified that, after he and Mother separated, Mother assaulted both him and a woman he was dating at a restaurant, resulting in a felony charge against Mother. He said that Mother was holding I.J. during the attack on his girlfriend, and Mother avoided jail time by pleading no-contest and agreeing to take anger-management classes.
Father further testified that Mother regularly interfered with his ability to visit I.J. and that she filed numerous false reports with both the police and the Department of Family and Protective Services, accusing Father and his family of various crimes and acts of abuse or neglect. According to Father, those reports resulted in investigations that concluded Mother's allegations lacked merit.
Father's parents, Ron and Cynthia Bacon, also testified and corroborated certain aspects of Father's testimony. Ron Bacon testified that Mother had filed numerous false reports that were determined to lack merit. He also testified that Mother made it very difficult for Father's family to see I.J. and often disparaged Father's family in front of the child. Mr. Bacon had no concerns about Father's ability to care for I.J. He said "he's a very loving father and he cares for his daughter and he's been very, very good about being a good dad." Mr. Bacon continued that Father is a "good person" and a "good provider," he "has a great business and good company," and "he would be a great father and great caretaker."
Cynthia Bacon likewise testified that Mother made false reports and allegations against Father's family. She said she was concerned about I.J. remaining in Mother's care because Mother had abused her eldest daughter. And she was concerned that Mother was causing psychological harm to I.J. by constantly disparaging Father's family and encouraging her not to interact with them.
Mother argues that Father's positive drug test while the case was pending and his admission that he drinks alcohol, along with her testimony that she was I.J.'s primary caretaker, that Father was abusive, that Father acted inappropriately with his girlfriend in I.J.'s presence, and that Father neglected I.J. during his periods of visitation, required the trial court to appoint her as I.J.'s sole managing conservator instead of Father. With respect to Mother's allegations of abuse and neglect, the trial court was free to disbelieve Mother's testimony as lacking credibility. See In re A.E.E., 2019 WL 1552450, at *2 ("To the extent the court heard conflicting testimony about who was the victim of family violence, the trial court, as the judge of witness credibility, was free to disbelieve Mother's testimony.").
With respect to Father's drug and alcohol use, Father testified openly that he had tested positive for cocaine based on an isolated incident that occurred while he was on vacation in Mexico. He testified that he does not use drugs and noted that his most recent drug test was negative. The Bacons testified that they do not believe Father has a substance abuse problem and that they have never seen him under the influence around I.J. The trial court was within its discretion to conclude that the evidence introduced at trial did not rebut the statutory presumption that appointing Father as a managing conservator was in I.J.'s best interest.
And given the trial court's finding that Mother had a history of family violence, which is supported by the record, as well as evidence suggesting that Mother had committed acts of violence in front of I.J., the trial court was within its wide discretion to determine that appointing Mother as a managing conservator was not in the child's best interest, regardless of whether Mother to that point had been the child's primary caretaker. Accordingly, the trial court did not abuse its discretion by appointing Father as I.J.'s sole managing conservator.
Mother next argues that the trial court violated her rights to due process and due course of law by "by unreasonably restricting the time for trial and by predetermining the outcome of the case before evidence was presented." We review complaints about the administration of a trial for abuse of discretion. See Chambers v. Pruitt, 241 S.W.3d 679, 688 (Tex. App.-Dallas 2007, no pet.). With respect to the trial court's time limitations, Mother did not preserve an appellate issue by raising a timely objection in the trial court. See McCray v. McCray, No. 05-15- 01557-CV, 2017 WL 3097626, at *2 (Tex. App.-Dallas July 21, 2017, no pet.) (mem. op.) ("Failure to object to time limits imposed by a trial court waives any error.").
Mother also failed to preserve any issue concerning the trial court's comments that Mother contends suggest it "predetermine[ed] the outcome of the case before evidence was presented." A party generally waives any error based on a trial court's improper comments if it does not timely object and provide an opportunity to cure. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); In re E.M., No. 02-18-00351-CV, 2019 WL 2635565, at *2 (Tex. App.-Fort Worth June 27, 2019, orig. proceeding.) (mem. op.). Mother did not object when the trial court made the comments of which she now complains on appeal, and she provides no argument to suggest that any error could not be cured.
Regardless, the statements Mother complains of do not suggest the trial court improperly pre-determined the outcome of the case. Before the parties presented their evidence at trial, the court informed them that it had reviewed the file and the parties' proposed exhibits. It then told the parties that, based on that review, it assumed both that the parties would prove up the divorce and that it would grant the divorce. Thus, it asked the parties to spend their limited time focusing on "the important stuff," which it explained was the child's best interest.
As noted above, both parties requested a divorce on grounds of insupportability and judicially admitted all facts necessary to grant a divorce on those grounds. No further evidence was necessary on that issue, and the trial court did not reversibly err by expressing its intention to grant the divorce or by asking the parties to focus on the contested issues during the trial.
We affirm the trial court's divorce decree.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 18th day of April, 2024.