Opinion
No. 07-17-00121-CV
02-12-2018
IN THE MATTER OF THE MARRIAGE OF ASHLEY N. DUDLEY AND MARCUS W. DUDLEY AND IN THE INTEREST OF E.C.D., A CHILD
On Appeal from the 223rd District Court Gray County, Texas
Trial Court No. 38,196, Honorable Phil N. Vanderpool, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Marcus W. Dudley (Marcus) appeals a final divorce decree wherein he was divorced from Ashley N. Dudley (Ashley). They had one child of the marriage (E.C.D.), and both parents were designated joint managing conservators. However, Ashley was granted the authority to designate the child's primary residence without regard to geographic location. Through several issues, Marcus contends that the trial court erred in 1) not entering a "stepped-up" possession order leading to a standard possession order, 2) ordering the sale of a 2013 Chevy pickup and directing payment of 44% of the sales price to Ashley, and 3) finding a gun safe to be the property of Ashley's parents. We affirm.
Possession Order
Marcus initially contends that the trial court abused its discretion by refusing to order a "stepped-up" possession order culminating in a standard possession order on the child's third birthday. Allegedly, the entry of the "stepped-up" order was required "because it would have been in the child's best interest to foster a relationship between the child and her father. The small amount of time awarded to [Marcus] for the foreseeable future is not enough for the child to form a meaningful bond with [Marcus]." We overrule the issue.
Though Marcus failed to describe what he meant by a "stepped-up" possession order, the context of his argument leads us to interpret it as one culminating in a standard possession order.
First, the pertinent standard of review is one of abused discretion. In re Collier, 419 S.W.3d 390, 397 (Tex. App.—Amarillo 2011, no pet.) (stating that issues regarding child custody are reviewed for an abuse of discretion). Second, the child's best interests shall always be the primary consideration when determining both conservatorship and possession of the child. Id., (citing TEX. FAM. CODE ANN. § 153.002 (West 2008)). And, the trial court is afforded wide latitude in determining that matter. Third, seldom is discretion abused when some evidence supports the trial court's decision. Id. Fourth, while there is a rebuttable presumption that the standard possession order provides reasonable minimum possession of the child and is in the child's best interests, the presumption is, as its name suggests, rebuttable. Id. at 398. Factors such as the child's age, developmental status, circumstances, needs, and the circumstances of the managing conservator are relevant when assessing whether the presumption is rebutted. Id.
The trial court here entered a "modified possession order." Per its terms, each conservator "shall have possession of the child at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that . . . MARCUS . . . shall have the right to possession . . . 1. On Thursdays from 5:30 p.m. to 6:30 p.m. [and] 2. On the first, third, and fifth Saturdays of each month from 10:00 a.m. until 4:00 p.m." This order was entered after the trial court heard evidence about 1) Marcus working in a geographic region many miles distant from the child's residence, 2) Marcus having been subjected to an investigation for child abuse, 3) Marcus being physically and verbally abusive to the children of Ashley's first marriage, 4) Marcus being in arrears regarding payment of child support prior to finalization of the divorce, 5) E.C.D. having suffered congenital heart maladies that have continuing effects, 6) Marcus having responded inadequately during an instance wherein E.C.D. stopped breathing, 7) Marcus denying or failing to fully comprehend the extent of E.C.D.'s heart condition and its continuing effects on her, 8) Marcus engaging in temper tantrums wherein he threw objects, slammed doors, and cussed, and 9) Marcus having been referred to "Family Support Services, and [a] . . . batterer intervention program" after undergoing initial counseling, and to receive instruction on anger management. Of course, aspects of the foregoing litany of testimony were disputed by contradictory evidence. Yet, it was left to the trial court, as fact-finder, to decide who to believe. In re Collier, 419 S.W.3d at 397. If it deigned to believe what is described above, it had evidentiary basis upon which to conclude that the child's best interests required a deviation from the standard possession order. And, that basis effectively insulated the modified possession order from allegations of abused discretion.
The child involved was one from Ashley's prior marriage. Though it ended without a finding of abuse by the investigative body, the representative indicated that part of the reason for such an end was due to Marcus' decision to leave the home.
We further note that under the trial court's order, Marcus may gain greater opportunity to possess the child than periods provided in a standard possession order. It all depends upon to what the parties agree.
As for the suggestion that the trial court also erred in ordering Marcus to attend a batterer's intervention program without first finding that he engaged in family violence, we note the absence of legal authority cited in support of the contention. Nor do we find any analysis of the topic in appellant's brief or argument supporting the averment. Consequently, it was waived due to inadequate briefing. Williams v. State, No. 07-01-0414-CR, 2003 Tex. App. LEXIS 1453, at *4-5 (Tex. App.—Amarillo Feb. 13, 2003, pet. ref'd) (not designated for publication) (holding that an issue is waived if unsupported by substantive analysis or citation to legal authority).
Property Division
We next address Marcus' contentions regarding the trial court's division or classification of property. The items of property in question are a 2013 Chevy pickup truck and a gun safe.
We start with the pickup. The trial court ordered it sold and 44% of the proceeds be given to Ashley while Marcus was to keep the remaining 56%. This division was based upon evidence that Ashley had provided $25,000 of her separate property as a down payment for its acquisition shortly after she married Marcus. The $25,000 represented 44% of the purchase price. The trial court also gave Marcus the option of retaining the truck in exchange for reimbursing Ashley $25,000. This was error allegedly because the entirety of the vehicle was community property and "should have been split equally between the parties."
We assume arguendo that the truck was community property and subject to being split equally, as suggested by Marcus. What we do not see, though, is how he benefits from that argument or how the trial court's finding harmed him. Again, the trial court awarded Ashley only 44% of the sales proceeds once the truck was sold. Marcus was awarded the remaining 56%. If the entire truck were community property and proceeds split equally, Marcus would recoup only 50% of them. So, due to the purported error, the trial court actually awarded him more than he would receive if we were to accept his contention. That actuality prevents us from holding that the purported error of the trial court caused him harm, and, finding harm is a prerequisite to reversing the trial court's judgment. TEX. R. APP. P. 44.1(a). As for the allegation that the trial court should not have required him to sell the vehicle, he provides neither legal authority nor substantive analysis suggesting that it lacked such authority; thus, he waived the contention due to deficient briefing.
Next, we address the gun safe. The trial court found that it belonged to Ashley's parents and was "not part of the marital estate of the parties and not subject to division in this cause." This finding was supported by evidence illustrating that the safe was in the home belonging to her parents prior to the couple moving in and that it belonged to her parents. Though Marcus contended his ex-in-laws gave the item to him as a gift, Ashley testified otherwise. Simply put, the disagreement between the two ex-spouses created a question of fact for the trial court to resolve. It opted to believe Ashley as it was authorized to do under the law.
We overrule each issue raised by Marcus and affirm the final divorce decree entered by the trial court.
Per Curiam