Opinion
No. 03-08-00003-CV
Filed: March 20, 2009.
Appealed from the District Court of Travis County, 250th Judicial District, No. D-1-FM-06-003429, Honorable Jon N. Wisser, Judge Presiding.
Affirmed.
Before Justices PATTERSON, WALDROP and HENSON.
MEMORANDUM OPINION
Appellant Anna Stoufflet appeals from the trial court's final divorce decree. The appellant challenges those portions of the divorce decree regarding custody and control of the couple's three children, control of the children's custodial investment accounts, the use of certain reunification services, child support, health insurance costs, division of the marital estate, spousal maintenance, and access to the children's medical records. She also argues that the court erred in appointing and relying on the testimony of the guardian ad litem. Because we hold that there is no error in the divorce decree and that the trial court did not err in appointing and relying on the testimony of the guardian ad litem, we affirm the trial court's judgment.
BACKGROUND
Anna Stoufflet and Appellee Paul Stoufflet were married for seventeen years. They have three minor children — a daughter, N.S., now age 15, and two sons, D.S., now age 12, and A.S., now age 9. Anna and Paul separated on July 12, 2006. The circumstances surrounding their separation are largely disputed. Anna accuses Paul of repeatedly abusing the children for several years and claims that the children told her of this abuse immediately prior to the separation and that they continued to recover memories of abuse in the weeks and months following the separation. Paul argues that Anna suffers from paranoid delusions that led her to falsely believe he abused the children and to plant false memories of this abuse in the children.
Because the appellant and the appellee share the same surname we will refer to them by their first names.
According to Anna, she left Paul after discovering that D.S., then age 9, had viewed sadomasochistic pornography on a laptop given to him by Paul. Anna testified that she believes that Paul showed the pornography to D.S. Anna also claims to have found sadomasochistic pornography and pornography involving bestiality on the family's desktop computer. Paul admits to viewing sadomasochistic pornography himself, but denies deliberately showing pornography of any kind to his son and denies seeking out any pornography involving bestiality. Paul testified that while he viewed pornography online from his laptop, he never knowingly saved any of it to his computer and never viewed pornography on the family desktop. According to Paul, when he purchased a new laptop in June 2006, he gave the old laptop to D.S. Paul testified that before doing so, he created a new profile for D.S. and archived his own profile in a deleted user's folder. Paul admitted that D.S. must have found pornographic images in this archived folder and testified, "In retrospect, I believe there were files stored in caches deep and I did not know about them, and I'm eternally regretful of that." After discovering the pornography, Anna took D.S.'s laptop to a data recovery specialist who testified to finding 22,000 hits for the words "torture" or "bondage" and finding several sadomasochistic images in the deleted user folder. The data recovery specialist testified that, based on where the files were located, it is conceivable that an ordinary computer user would have believed that all of the images he found were deleted or never stored in the computer's memory.
Anna and Paul separated soon after she discovered the pornography. In the weeks and months following the separation, the children and Anna made several allegations of prior physical, emotional, and sexual abuse by Paul. The allegations are many and varied, including that Paul choked N.S. several times; pushed, hit, and kicked all three of the children regularly; sexually abused D.S. and A.S.; physically and sexually abused family pets in front of the children; drugged and sexually abused Anna while she was unconscious; and tortured and killed two young boys in front of D.S., N.S., and their paternal grandmother. Paul denies all of the allegations of abuse.
The paternal grandmother testified and denied having ever witnessed her son abuse her grandchildren or any other children.
Because of the serious nature of the allegations, each of the children, as well as Anna and Paul, have undergone psychological and psychiatric testing. Each child saw separate psychotherapists and they shared a single psychiatrist who prescribed and monitored their psychiatric medications. Anna and Paul also participated in psychotherapy. In addition, the family members were examined by a forensic psychiatrist, a psychologist specializing in conservatorship evaluations (hereinafter "the conservatorship psychologist"), and a psychologist specializing in family reunification (hereinafter "the reunification psychologist").
N.S. was in therapy with a licensed psychologist, and D.S. and A.S. were in therapy with licensed certified social workers.
The bulk of the testimony at trial came from the various mental health professionals. The majority of the therapists came to the conclusion that the children were not abused and that they were coached by their mother to make the allegations, although the children's treating psychiatrist disagreed, concluding that the children had in fact been abused by their father.
N.S. made various outcries to her therapists alleging that her father had abused her and her siblings. Both the conservatorship psychologist and her treating psychotherapist noted that N.S. seemed more concerned about the alleged abuse of her siblings than herself. The conservatorship psychologist testified that N.S.'s emotional affect did not match the tenor of her allegations. He did, however, note that her story was consistent.
D.S. initially alleged physical abuse — that he was kicked, punched, and thrown down the stairs. The severity of his allegations increased over time, and he eventually alleged that he was sexually molested and that he witnessed his father torture and kill two young children. Both the conservatorship psychologist and his treating psychotherapist testified that D.S.'s stories of abuse were internally inconsistent and that his emotional affect was not congruent with his allegations. The conservatorship psychologist posited that D.S. might be having nightmares based on the sadomasochistic pornography he viewed, and that D.S. was confusing the nightmares with actual memories. His psychotherapist testified that most of the allegations of abuse came not during therapy, but during the evenings after therapy, when either D.S. or Anna would call and say that D.S. had remembered something new.
According to the conservatorship psychologist, A.S.'s stories were inconsistent, his emotional affect did not match his allegations, and he would often preface his statements with "Mom told me to say this" or something similar. A.S.'s therapist testified that A.S. had largely withdrawn from the original allegations and chose not to talk about them during therapy. His therapist testified that, when asked about the allegations, he would often say he could not remember. His therapist further testified that A.S. had not told her any of the later allegations of sexual abuse that were mentioned by the family's other therapists and that, during play therapy, A.S. did not exhibit any of the symptoms of a child who had been sexually abused. A.S.'s therapist had heard all of the children's initial outcries and she testified that, in her opinion, the older two children believed their own allegations, while A.S. was mainly feeling "reverberation from the two oldest."
The therapist testified that she had not herself reached a firm conclusion on whether she believed any of the allegations other than the pornography.
All three children were referred by their psychotherapists to the same psychiatrist for possible medication. Unlike the other mental health professionals, the children's psychiatrist testified that she did not see any evidence that Anna had coached the children or planted the allegations of abuse in their heads. Their psychiatrist further testified that the children's affect matched their allegations and that their allegations had remained consistent.
The psychotherapist for A.S., the person to whom the three children made their initial outcries, also testified that initially the children appeared afraid and that their affect matched their stories. A.S.'s therapist testified that the older children then each began seeing their own therapist, and that A.S.'s stories began to change later.
Anna was diagnosed with paranoid delusions by her treating psychologist, the conservatorship psychologist, and the forensic psychiatrist. Her treating psychologist also diagnosed Anna with severe depression, which he noted can cause delusions. In addition to the allegations of abuse by Paul, which the forensic psychiatrist called "rather fantastical," over the course of the separation Anna recovered memories of sexual abuse by her own father and then recanted from those allegations. All three professionals noted that Anna's delusions would inhibit her ability to help the children reunify with their father. The children's psychiatrist again disagreed with the other mental health professionals. While she did not examine or treat Anna, she reviewed the forensic psychiatrist's report and testified that she believed that his diagnosis was not supported by Anna's test results, and was instead based solely on collateral evidence.
In addition, Anna was being treated by a psychiatrist, who did not testify.
Another psychologist who provided a report, but did not testify, concluded that Anna's test results did not reveal any evidence of psychosis or paranoid delusional activity. He noted, however, that "[i]n the event that those allegations [of physical and sexual abuse of the children by Paul] are substantially embellished or outright false, it would be my opinion that Ms. Stoufflet asserts them because of a severe character disorder."
Paul was diagnosed with low-level depression, for which he was being treated by a psychotherapist. All of the mental health professionals expressed concern about Paul's proclivity for viewing sadomasochistic pornography. The conservatorship psychologist noted that such a proclivity was "consistent with intrafamilial child sexual offenders," but that Paul "does not display the majority of the characteristics commonly observed in intrafamilial child sexual offenders or child abusers." Paul's psychotherapist testified that while they focused mainly on Paul's depression, he had spoken with Paul about the pornography and believed that Paul had stopped viewing pornography and that as long as Paul was able to refrain from viewing it, nothing more needed to be done.
The children's outcries to the mental health professionals were reported to the Texas Department of Family and Protective Services Child Protective Services Unit (CPS). CPS ruled out the allegations of physical, emotional, and sexual abuse by Paul, finding that they were not supported by a preponderance of the evidence. CPS did, however, find reason to believe that all three children had been emotionally abused by their mother and that Paul had been negligent in his supervision of D.S. by allowing him access to the pornographic images.
The children's guardian ad litem recommended that A.S. begin reunification with his father immediately and that N.S. and D.S. be removed from their mother's custody and placed in foster care and reunified with their father at a later date.
In the final divorce decree, the trial court ordered that Anna and Paul be appointed joint managing conservators of the children. Anna was given primary custody of N.S. and D.S. and the right to determine their residency, while Paul was given primary custody of A.S. and the right to determine his residency. At Paul's request, Paul and A.S. were ordered to participate in the "Bridges" program at the Rachel Foundation, an organization specializing in family reunification. While Paul and A.S. were participating in the Bridges program, Anna's possession of A.S. was suspended and she was allowed only supervised visits.
In sixteen points of error, Anna argues that the trial court erred in the custody orders, in granting Paul control of the children's custodial investment accounts, in ordering the use of the Rachel Foundation and limiting her access to A.S. during that period, in its calculation of child support, in its assignment of the costs of the children's health insurance, in its division of the marital estate, and in its calculation of spousal maintenance. She also argues that the court erred in appointing and relying on the testimony of the guardian ad litem.
STANDARD OF REVIEW
We review Anna's complaints under an abuse of discretion standard. See In re J.P.C., 261 S.W.3d 334, 336 (Tex.App.-Fort Worth 2008, no pet.) (determination of best interest of child); London v. London, 192 S.W.3d 6, 14 (Tex.App. 2005, pet. denied) (child support); In re J.R.D., 169 S.W.3d 740, 742-43 (Tex.App. 2005, pet. denied) (child conservatorship and possession; determination of best interest of child); O'Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex.App. 2002, no pet.) (division of marital estate); Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex.App.-Dallas 2001, pet. denied) (spousal maintenance); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex.App. Austin — 1996, no writ) (child support).
A trial court abuses its discretion when its decision is arbitrary, unreasonable, and without reference to any guiding rules or principles. In re J.R.D., 169 S.W.3d at 742-43. In reviewing a trial court for an abuse of discretion, we view the evidence in the light most favorable to the trial court's order, indulging every reasonable inference in its favor. Universal Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 576 (Tex.App. 2000, no pet.). We may not substitute our judgment for that of the trial court. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004). Where, as here, the trial court did not issue findings of fact and conclusions of law, the judgment will be sustained on any legal theory supported by the evidence. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986).
DISCUSSION
Child Custody
In points of error one through five, Anna challenges the trial court's orders regarding child custody. Specifically, she argues that the children should not have been separated (point of error one), that Paul should not have been appointed joint managing conservator of the children nor given custody of A.S. and that, instead, his parental rights should have been terminated (points of error two through four) and that the court should not have imposed any geographic restrictions on Anna's choice of residency (point of error five).
A trial court has broad discretion in deciding child custody issues. See, e.g., In re J.R.D., 169 S.W.3d at 743 (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)) . The best interest of the child must always be the primary consideration when determining issues of conservatorship and possession. Tex. Fam. Code Ann. § 153.002 (West 2008). We will not disturb the trial court's child-custody decision unless the record as a whole shows the trial court abused its discretion. In re J.R.D., 169 S.W.3d at 743.
Separation of Children
In her first point of error, Anna argues that the trial court abused its discretion when it separated the children — placing A.S. in the primary possession of Paul and N.S. and D.S. in the primary possession of Anna — without a clear and compelling reason for doing so. There is a long line of jurisprudence in Texas that supports keeping siblings together in the same household absent clear and compelling reasons for separating the children. See, e.g., Coleman v. Coleman, 109 S.W.3d 108, 112 (Tex.App. 2003, no pet.); O. v. P., 560 S.W.2d 122, 127 (Tex.Civ.App.-Fort Worth 1977, no writ); see also Tex. Fam. Code Ann. § 153.251(c) (West 2008) ("It is preferable for all children in a family to be together during periods of possession."). However, the separation of the children is only one of many factors to consider in determining the best interests of the children. Coleman, 109 S.W.3d at 113; Ditraglia v. Romano, 33 S.W.3d 886, 890 (Tex.App. 2000, no pet.). Other factors include "the age of the children, the location of the parents, the present and future emotional and physical needs of the children, the stability of each parent's home, and the present and future emotional and physical danger to the children." Coleman, 109 S.W.3d at 113.
Since the trial court did not make, and the parties did not request, findings of fact and conclusions of law, the trial court is presumed to have found facts in favor of its order if there is any probative evidence to support the order. See Allen, 717 S.W.2d at 313. Based on the testimony of the children's mental health professionals, the trial court reasonably could have found that the only way to serve the best interests of all three children was to separate them.
The trial court heard evidence that all three children were harmed by their mother's paranoid delusions and by her practice of speaking ill of the father in front of the children. Yet, according to the various therapists, A.S. was the only child who was ready to be separated from his mother and begin reunification with his father. The conservatorship and reunification psychologists both testified that A.S. was the most open to his father during the visits, and, while he would initially express anxiety about the visits, A.S. would quickly appear comfortable with his dad and stay near Paul during the visits. The trial court also heard testimony from A.S.'s therapist that A.S. needed to be immediately removed from the continuing allegations that permeated his mother's home.
In contrast, N.S.'s and D.S.'s therapists testified that they were not ready to be placed with their father and could suffer grievous emotional harm if they were removed from their mother and placed with their father or in foster care. Each of the therapists viewed N.S. as the child least open to reunification with her father. According to the reunification psychologist who monitored the children's visits with Paul, N.S. was more distant than the boys and more resistant to attending the visits at all. Similarly, the trial court heard evidence that D.S. was also not ready to be placed with his father. His psychotherapist testified that, in her opinion, if D.S. were to be placed with his father he would likely suffer a psychotic break. The reunification psychologist also testified that D.S. was not yet ready to be placed with his father, but recommended that the visits with his father continue and increase in length. In addition, the trial court heard testimony that N.S. was too often in a caretaker role and that her therapist suspected she was given too much responsibility for A.S., from which the trial court could have concluded it was in her best interests to be separated from her younger brother.
In reviewing the court's decision, we also note that the children are only separated three and a half days a week, and that they are together every Thursday evening, on weekends from Friday afternoon through Sunday, and on holidays and school vacations. Compare Coleman, 109 S.W.3d at 112 (abuse of discretion to split siblings without clear and compelling reasons where children lived in different states and thus were only together for short periods of time), with Ditraglia, 33 S.W.3d at 890 (no abuse of discretion where siblings were separated for only part of each week).
Based on the evidence before it, the trial court could have reasonably concluded that A.S. would face future emotional danger if he continued to live with his mother and siblings whereas N.S. and D.S. would face future emotional danger if they were removed from their mother's care, and that the only way to serve the best interests of all three children was to separate them. Therefore, we conclude that the trial court could have found clear and compelling reasons to separate the children and we overrule Anna's first point of error.
Appointment of Joint Managing Conservators
In her second, third, and fourth points of error, Anna argues that Paul's rights should have been terminated and that he should not have been appointed as a joint managing conservator of the children or given custody of A.S. because of the allegations of abuse by Paul. There is a rebuttable presumption that appointing both parents as joint managing conservators is in the best interest of the child. See Tex. Fam. Code Ann. § 153.131 (West 2008). Anna, however, points to the prohibition against appointing joint managing conservators where there is a history of domestic violence or child abuse or neglect and argues that the testimony presented at trial is enough to trigger this prohibition. See id. § 153.004(b) (West 2008).
The trial court was presented with conflicting testimony on the allegations that Paul had emotionally, physically, and sexually abused Anna and the children. The trial court "is the sole judge of the weight and credibility of the evidence." Coleman, 109 S.W.3d at 111. When presented with this conflicting testimony, the trial court did not abuse its discretion in determining that the testimony of the majority of the mental health professionals and of the CPS investigator, which suggested that the children had not been abused but had been coached by their mother to make the allegations, was more credible than the testimony of Anna and the children's psychiatrist regarding the abuse.
Anna also argues that she and Paul should not have been appointed as joint managing conservators because they did not have a history of co-parenting or cooperative decision-making. See Tex. Fam. Code. Ann. § 153.134 (West 2008) (listing factors to consider in appointing joint managing conservators, including "whether both parents participated in child rearing before the filing of the suit" and "the ability of the parents to . . . reach shared decisions in the child's best interests."). While the trial court did not issue findings of fact or conclusions of law indicating which factors it considered, we imply all findings necessary to support the judgment and affirm on any legal theory that finds support in the evidence. LaFrensen v. LaFrensen, 106 S.W.3d 876, 877 (Tex.App.-Dallas 2003, no pet.). Furthermore, the ultimate consideration is whether a joint managing conservatorship "is in the best interest of the child," id. § 153.134(a), and that determination is within the sound discretion of the trial court, see Naguib v. Naguib, 137 S.W.3d 367, 371-72 (Tex.App.-Dallas 2004, pet. denied). The trial court is in a better position to determine what will be in the child's best interest since it faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent. Id.; Coleman, 109 S.W.3d at 111. While Anna testified at trial that Paul was not an active participant in parental decision-making, Paul testified that this was a more recent phenomenon as a result of Anna's withdrawal during the marriage. Given the rebuttable presumption in favor of joint managing conservatorship, we cannot say it was an abuse of discretion for the trial court to appoint both parents as joint managing conservators. We overrule Anna's second, third, and fourth points of error.
Geographic Restrictions
In her fifth point of error, Anna argues that the trial court erred in imposing geographic restrictions on her ability to determine the primary residence of N.S. and D.S. Like Paul, Anna is restricted to Travis County and the surrounding counties. Once a court has appointed a joint managing conservator and designated which parent has the exclusive right to determine the primary residence of the child, it then has discretion to either establish a geographic area where the child may reside or specify that there are no geographic restrictions. See Tex. Fam. Code. Ann. § 153.134. N.S. and D.S. spend weekends with their brother and alternate weekends with their father, and a geographic restriction in determining the residency of all the children facilitates these periods of possession. Furthermore, Anna requested that such a restriction be placed on both parents in the proposed parenting plan she submitted to the court. At no point during the hearing did she modify that request. Therefore, Anna cannot now complain that her request was granted. See Swaab v. Swaab, ___ S.W.3d ___, No. 14-06-00593-CV, 2008 Tex. App. LEXIS 2986, at *40 (Tex.App. April 24, 2008, no pet. h.) (where appellant requested joint managing conservatorship in parenting plan and in testimony and did not object at hearing for entry of divorce decree, issue waived on appeal). We overrule Anna's fifth point of error.
Custodial Accounts
In her sixth point of error, Anna argues that the trial court abused its discretion in granting Paul sole and exclusive control of investment accounts held in the children's names. Anna argues that because she is the person receiving child support, she should have been given control of the children's accounts. Anna has provided no legal authority for this contention, nor have we found any. The trial court is required to allocate the rights of the two joint managing conservators. See Tex. Fam. Code Ann. § 153.134(b)(4). Neither side presented any evidence on the specific issue of who was in the best position to manage the accounts. However, as in all other matters regarding the conservatorship of the children, such an allocation is governed by the child's best interests and is within the broad discretion of the trial court. See In re J.P.C., 261 S.W.3d at 335-36 (where best interest determination is involved, standard of review should be abuse of discretion); G.K. v. K.A., 936 S.W.2d 70, 72 (Tex.App. 1996, writ denied) ("A trial court is given wide discretion to determine the best interest of the child in family law matters."). The trial court "faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent" and thus is in the best position to determine what will be in the children's best interests. In re J.R.D., 169 S.W.3d at 743. Anna points to nothing in the record to indicate why it is not in the children's best interest for Paul to manage the accounts, or, conversely, why it is in the children's best interests for Anna to manage the accounts instead. Anna has not met her burden to clearly demonstrate that the trial court abused its discretion by placing Paul in control of the children's investment accounts, see Stallworth v. Stallworth, 201 S.W.3d 338, 349 (Tex.App.-Dallas 2006, no pet.) ("This abuse must be clearly demonstrated, or the discretion will not be disturbed on appeal, and it will be presumed that the trial court acted properly."); see also Simon v. York Crane Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (complaining party has burden to prove abuse of discretion). Therefore, we presume that the trial court acted properly and will not disturb its order. Stallworth, 201 S.W.3d at 349. We overrule Anna's sixth point of error.
Anna cites a case holding that a sole managing conservator should not be ordered to pay child support to a possessory conservator, Lueg v. Lueg, 976 S.W.2d 308, 313 (Tex.App. 1998, no pet.), which does not speak to the issue before us.
The Rachel Foundation
In her seventh and eighth points of error, Anna argues that the trial court erred in requiring A.S. and Paul to complete the Rachel Foundation's "Bridges Program" and in refusing to consider evidence she sought to introduce post-trial that the Rachel Foundation was not properly licensed to provide counseling services. In her sixteenth point of error, she argues that the court improperly limited her access to A.S. while he and Paul were participating in the Bridges Program.
Without commenting on the merits of Anna's complaint about the Rachel Foundation or her original motion to admit evidence post-trial, we dismiss these three points of error as moot. An issue becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings, including the appeal. In re Kellogg Brown Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005). According to the terms of the final divorce decree, A.S. and Paul were to complete the Bridges Program by January 22, 2008 and the last ordered supervised visit was January 19, 2008. After A.S. and Paul completed the Bridges Program, Anna was to have unsupervised possession of A.S. on Thursday evenings and alternate weekends. There is nothing in the record to indicate, and Anna does not allege, that A.S. and Paul did not complete the program according to the timetable set forth in the divorce decree. Therefore, the issue is moot and we overrule Anna's seventh, eighth, and sixteenth points of error.
Child Support
In her ninth point of error, Anna argues that the trial court erred in its calculation of child support. Anna argues that because Paul testified that he formerly grossed $120,000 a year, the trial court should have used this figure to calculate his net monthly income and his child support obligations. Therefore, according to Anna, Paul should have been ordered to pay child support of $1,500 per month, rather than only $1,350 per month.
Paul counters that his testimony was that while he made $120,000 a year prior to the dissolution of his medical practice, as a solo practitioner he was making $6,000 per month at the time of trial, but expected to reliably make $8,000 per month as his practice became more firmly established.
Applying the Texas Attorney General's child support tax charts for 2007 to the $8,000 per month figure, the trial court could have found that Paul had a net monthly income of $5,843. When a non-custodial parent is paying child support for two children (N.S. and D.S.) and also supporting another child, the family code provides two methods for calculating the amount of child support. Tex. Fam. Code. Ann. §§ 154.128, .129 (West 2008). Under the first method, Paul's net resources are reduced by the amount of child support that would have been attributable to A.S. were he paying support for all three children, and then child support for D.S. and N.S. would be based on that adjusted figure. Id. § 154.128. Using this method, Paul's child support would be $1,052. Under the alternative method, the percentage of income used to calculate child support is reduced and applied to Paul's entire net income. Id. § 154.129. Using this method, Paul's child support would be $1,315. Therefore, we hold that the trial court did not abuse its discretion in ordering $1,350 per month in child support and we overrule Anna's ninth point of error.
The family code requires the attorney general to create tax charts to assist in calculating an obligor's net income for child support purposes. Tex. Fam. Code Ann. § 154.061(b) (West 2008). The current year's tax chart is printed in the annotated statutes and prior years' charts are also available on the attorney general's website. See Tax Charts for Years 1987-Current, http://www.oag.state.tx.us/cs/attorneys/attorneys_other_tax.shtml (last visited Feb. 26, 2009).
Section 154.128 provides that:
(a) In applying the child support guidelines for an obligor who has children in more than one household, the court shall apply the percentage guidelines in this subchapter by making the following computation:
(1) determine the amount of child support that would be ordered if all children whom the obligor has the legal duty to support lived in one household by applying the schedule in this subchapter;
(2) compute a child support credit for the obligor's children who are not before the court by dividing the amount determined under Subdivision (1) by the total number of children whom the obligor is obligated to support and multiplying that number by the number of the obligor's children who are not before the court;
(3) determine the adjusted net resources of the obligor by subtracting the child support credit computed under Subdivision (2) from the net resources of the obligor; and
(4) determine the child support amount for the children before the court by applying the percentage guidelines for one household for the number of children before the court to the obligor's adjusted net resources.
See Tex. Fam. Code. Ann. § 154.128(a) (West 2008).
Section 154.125 sets the amount of child support for a single household at 25% of net monthly income if paying support for two children and 30% if paying support for three children. See id. § 154.125 (West 2008).
Applying these two sections, if Paul were paying support for all three children, he would owe 30% of $5,843, or $1,753.90. The child-support credit for A.S. living with him would be one-third of that, or $584.30. Subtracting that credit from Paul's net monthly income gives him adjusted net resources of $5,258.70. The child support owed for N.S. and D.S. would then be 20% of $5,358.70, or $1,051.74.
Section 154.129 sets the amount of child support for a parent supporting one child and paying child support for two children at 22.5% of net monthly income. Id. § 154.129 (West 2008). Twenty-two and a half percent of $5,843 is $1,314.68.
Health Insurance
In her tenth point of error, Anna contends that the trial court erred in failing to assess the cost of the children's health insurance solely against Paul. The final divorce decree orders Paul to "include and maintain each child in [his] health insurance available through his employment." The decree also orders that such coverage is considered additional child support. While Anna is ordered to pay half of any health care costs not covered by insurance, nothing in the divorce decree orders her to reimburse Paul for half of the insurance costs. We interpret the order for Paul to "include and maintain" the children in his health insurance as assessing the cost solely against Paul, and Anna has not pointed us to any language that would lead us to a different interpretation. Therefore, we overrule Anna's tenth point of error.
Division of Marital Estate
In her eleventh and fourteenth points of error, Anna contends that the trial court erred in awarding Paul a disproportionate share of the community estate and in ordering Anna and Paul equally liable for income taxes from 2006.
Division of Community Property
The trial court is tasked with ordering a "just and right" division of the community property. Tex. Fam. Code Ann. § 7.001 (West 2006); Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985). We review a trial court's division of the property for an abuse of discretion. Stallworth, 201 S.W.3d at 349 (citing McKnight v. McKnight, 543 S.W.2d 863, 866 (Tex. 1976)); O'Carolan, 71 S.W.3d at 532.
At trial, Paul requested economic contribution for amounts he contributed from his separate property to the purchase of the family home. See Tex. Fam. Code Ann. § 3.403 (West 2006) (authorizing reimbursement of marital estate that makes economic contribution to property owned by another marital estate). However, the trial court did not order that Paul's economic-contribution claim be awarded. It simply ordered that the proceeds from the couple's homestead be distributed fifty-five percent to Paul and forty-five percent to Anna. Anna assumes that this distribution was based on Paul's claim for economic contribution and argues that this was incorrect because Paul submitted an incorrect formula.
While there was evidence before the court that might have supported a claim for economic contribution, there is nothing in the record to indicate that the court did in fact grant this claim for economic contribution, much less what formula the court used if it did so. Without granting a claim for economic contribution, it was within the court's discretion to divide the proceeds of the sale the way it did. Gardner v. Gardner, 229 S.W.3d 747, 756 (Tex.App. 2007, no pet.) ("The trial court has wide latitude to divide the marital estate in a manner the court deems `just and right.' In exercising this discretion, the court is not required to apportion the community property equally."). We note that the trial court also ordered that Paul be liable for a larger share of the community debt than Anna. Therefore, we overrule Anna's eleventh point of error.
Income Tax Liability
In her fourteenth point of error, Anna argues that the trial court erred in ordering she and Paul equally liable for their income tax liability for 2006. Anna claims that this order violates the prohibition against holding one spouse liable for the debts of another spouse. See Tex. Fam. Code §§ 3.201-.202 (West 2006). Anna and Paul were married for all of 2006. Therefore, any income Paul received during that year was community property; as an owner of half of the income, Anna is liable for half of the income taxes. See Williams v. Williams, 246 S.W.3d 207, 212 (Tex.App. 2007, no pet.) (salary and wages earned by either spouse during marriage is community property); see also Broday v. U.S., 455 F.2d 1097, 1100-01 (5th Cir. 1972) (if income is community property under state law, spouse is liable for income taxes under federal law). As a result, we overrule Anna's fourteenth point of error.
Spousal Maintenance
In her twelfth point of error, Anna argues that the trial court erred in ordering only $1,500 per month in spousal maintenance. She claims that the trial court should have calculated child support based on an annual income of $120,000 per year and that she is therefore entitled to the statutory maximum of $2,500 per month. See Tex. Fam. Code. Ann. § 8.055.
Anna established her eligibility for spousal maintenance by presenting evidence that she and Paul were married for ten years and that she lacks the earning capacity to provide for her minimum reasonable needs. See Tex. Fam. Code Ann. § 8.051 (West 2006) (eligibility requirements for spousal maintenance). Paul does not dispute this, but contends that Anna's argument is based on an incorrect income figure and a misunderstanding of the statutory calculation.
The family code prohibits the trial court from ordering more than the lesser of 25% or $2,500 per month. Id. § 8.055. Whether to order that maximum amount or a lesser amount is within the sound discretion of the trial court. See Pickens, 62 S.W.3d at 214. As when calculating child support, the trial court had evidence before it that Paul's current and future income ranged from $6,000 to $8,000 per month. Using $8,000 per month figure as Paul's income, the maximum amount of allowable spousal maintenance would be $1,600 per month. As a result, we hold that it was not an abuse of discretion for the trial court to order $1,500 a month — only $100 less than the statutory maximum. We overrule Anna's twelfth point of error.
Medical Records
In her thirteenth point of error, Anna contends that the trial court erred in ordering each parent to notify the other parent within twelve hours of any medical condition requiring surgical intervention or hospitalization.
Anna concedes that the family code grants parents the right to access the medical records of a child and to receive information from the other parent concerning the health and welfare of the child unless the court limits that right pursuant to a written finding that the limitation is in the best interest of the child. See Tex. Fam. Code §§ 153.072 (written finding required), 153.073 (rights retained by parent) (West 2008). Anna argues, however, that due to Paul's strained relationship with N.S. and D.S., it is not in the best interests of N.S. and D.S. for Paul to have unfettered access to the children's mental health records.
Anna points to a Texas Supreme Court opinion denying a father access to the detailed records kept by his daughter's psychologist. See Abrams v. Jones, 35 S.W.3d 620 (Tex. 2000). That case, however, is distinguishable from the issue before us. In Abrams, the father sought records that the psychologist refused to provide to either parent. Id. at 622-23. The psychologist had determined that it was not in the child's best interest to release the information, and the supreme court held that section 153.073 did not grant the father access to records that the psychologist would have withheld from both parents, pursuant to his authority under the health and safety code, had they not been divorced. Id. at 624-25; see also Tex. Health Safety Code Ann. § 611.0045(b) (West 2003). The provision in the divorce decree to which Anna objects does not require any health care professional to release information that, in their professional judgment, should be kept confidential; rather, it simply requires Anna and Paul to notify each other if they have knowledge that the child has a medical condition so serious that it requires surgery or hospitalization.
The trial court heard the evidence regarding the relationship between Paul and the two older children. Specifically, the trial court heard from each child's treating therapist. After hearing and weighing the evidence, the trial court found that such notification was in the children's best interests. As the trial court was able to observe these witnesses and the parents throughout the trial, we defer to its judgment. See Naguib, 137 S.W.3d at 371-72; Coleman, 109 S.W.3d at 111. We overrule Anna's thirteenth point of error.
Guardian Ad Litem
In her fifteenth point of error, Anna argues that the trial court erred in relying on the testimony of the guardian ad litem. Anna claims that the guardian ad litem was not qualified to be appointed nor to make recommendations regarding the children's mental health treatment plans because she is not a mental health professional licensed to conduct family counseling. See Tex. Fam. Code Ann. § 153.010(a)(1) (West 2008) (setting requirements for court-ordered family counselors). However, the guardian ad litem did not engage in family counseling; she was appointed as the guardian ad litem and tasked with representing the best interests of the children. See Tex. Fam. Code Ann. § 107.001(5) (West 2008). Any adult "having the competence, training, and expertise determined by the court to be sufficient to represent the best interests of the child" can be appointed as guardian ad litem. Id. The guardian ad litem in the present case had the authority to review the children's mental health records, the duty to interview any person with knowledge of the children's history — including their therapists — and the right to testify regarding her investigation and recommendations. Id. at § 107.002 (West 2008). Her testimony did not go beyond her powers and duties as guardian ad litem.
Furthermore, the guardian ad litem was appointed with the consent of the parties and Anna did not object to the appointment or to her testimony regarding her recommendations for the children, as required to preserve error. See Tex. R. App. P. 33.1(a)(1)(A); McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989). Therefore, the complaint is not preserved, and we overrule Anna's fifteenth point of error.
CONCLUSION
Because we hold that there is no error in the divorce decree and that the trial court did not err in appointing and relying on the testimony of the guardian ad litem, we affirm the judgment of the trial court.