Carla Ruth Cain v. Anthony Wilfred Cain--Appeal from 25th District Court of Colorado County

Affirmed and Memorandum Opinion filed November 29, 2007

Affirmed and Memorandum Opinion filed November 29, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00115-CV

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CARLA RUTH CAIN, Appellant

V.

ANTHONY WILFRED CAIN, Appellee

On Appeal from the 25th District Court

Colorado County, Texas

Trial Court Cause No. 21,537

M E M O R A N D U M O P I N I O N

Appellant, Carla Ruth Cain, appeals the trial court=s appointment of appellee, Anthony Wilfred Cain, as the joint managing conservator with the exclusive right to determine the primary residency of their two children, K.L.A.C. and L.B.C. We affirm.[1]

Factual and Procedural Background

The Cains were married in 1995 and they had two children. After eleven years of marriage, Anthony filed for divorce in March 2006. In his original petition for divorce, Anthony asserted that the parties should be appointed joint managing conservators and that the residence of the children should be limited to Colorado and surrounding counties. Carla eventually filed an amended counter-petition for divorce in which she asked the trial court to appoint both parents joint managing conservators. Carla also asked the trial court to appoint her as the managing conservator with the exclusive right to designate the primary residence of the children. Beyond agreeing that both parents should be appointed joint managing conservators, the Cains could agree on little else, even after an effort to mediate the disputed issues.

The trial court held two hearings, the first of which was an evidentiary hearing. During that hearing, both Anthony and Carla testified. While most of the testimony focused on the property division and the issue of spousal maintenance, both Anthony and Carla gave testimony relevant to the issue of which parent should be appointed the managing conservator with the exclusive right to designate the primary residence of the children.

Anthony testified first and he stated his belief that Carla has an anger problem. Anthony then testified, without objection, to previous incidents in which Carla broke doors off cabinets, tore a telephone off the wall, broke dishes, and scratched and slapped Anthony. Anthony also testified Carla=s anger was so out of control during one incident that their daughters fled the house, ran to Anthony=s mother=s house and did not want to return home for three days. Anthony also testified that Carla, as part of a probation, was ordered by a court in Austin to take anger management. Anthony testified he believes Carla denigrates their daughters and has called one of them fat. Anthony also recounted Carla=s threat to take their daughters to Oklahoma and then let him worry about visitation. Anthony also admitted that he and Carla had disagreements over his consumption of alcohol in the presence of the

children as well as about the level of his family=s involvement in their family=s life. Anthony testified that he did not have a problem with the court imposing a permanent injunction prohibiting him from consuming alcohol in the presence of his children as long as it was a mutual prohibition. As far as the children=s education, Anthony testified that he fully supported sending the children to private school. Anthony also testified regarding his income and work schedule. Anthony testified he earns between $96,000 and $100,000 annually. According to Anthony, his job requires that he travel to the work location and that he works for five days and then is off for five days. Finally, Anthony testified that he enjoys being with his children, and they enjoy being with him.

Carla testified after her husband. Carla denied having an anger problem, but she admitted to tearing the hinges off a cabinet door out of anger at Anthony. She also admitted that she was out of control during that incident and that she was ordered by a court to take anger management. Carla denied she still has an anger problem but admitted she still gets angry at Anthony=s family. Carla also testified about both her and Anthony=s consumption of alcohol. Carla stated that while she no longer consumes alcohol, in the past her consumption of alcohol possibly interfered with her being a mother. She also testified she quit drinking alcohol on several different occasions in the past. Carla denied she has a drinking problem and stated she believes that Anthony and his family do have a problem. Carla recounted an incident in which Anthony, after consuming alcohol, drove his family in a car at speeds in excess of 100 miles per hour. Carla also recounted that she has called the police because she was in fear of Anthony=s anger. Carla denied that she thinks one of her daughters is fat or that she has called her fat. Carla also desired that the children continue attending private school for their education. Carla also testified regarding her employment. Since moving to Washington County, Carla had worked for Stewart & Stephenson, at a chicken restaurant, and she had also sold jewelry. Carla testified that she had recently obtained a real estate license and hoped to be making at least $20,000 a year in the near

future. Finally, Carla testified that she believed that the best interest of the children would be best served through a joint managing conservatorship with standard visitation orders even though Anthony=s work schedule would significantly interfere with his ability to spend time with his children under a standard visitation order.

At the end of the first hearing, the trial court granted the divorce. It took the issues of custody, visitation, support, and the division of property under advisement.

At the second hearing, the trial court announced that the issues to be resolved that day included the right to establish residency, visitation, child support, and spousal support. Carla=s attorney lodged no objection to that rendition of the issues to be resolved. When Carla=s counsel argued that Anthony and Carla had agreed that Carla would be the managing conservator with the exclusive right to designate the primary residence of the children, the trial court interrupted and stated AYou all agreed to joint, managing conservatorship. I don=t think there was any agreement as to who would establish residency.@ Carla=s counsel then conceded the trial court was correct.

At the conclusion of the second hearing, the trial court appointed the parents joint managing conservators with Anthony having the exclusive right to designate the primary residence. The trial court also ordered that Carla would pay child support based on minimum wage and that there would be no spousal support.

Discussion

In a single issue on appeal, Carla contends the trial court abused its discretion when it appointed Anthony the managing conservator with the exclusive right to designate the primary residence of the children. Within that issue, Carla makes two sub-arguments. First, Carla contends the trial court abused its discretion because there was legally and factually insufficient evidence that it was in the best interest of the children for Anthony to be appointed the managing conservator with the exclusive right to designate the children=s primary residence. Second, Carla argues the trial court abused its discretion because Anthony=s pleadings do not support the relief granted by the trial court.

A. Standard of Review

We review a trial court=s decision on custody, control, possession, and visitation matters for abuse of discretion, and reverse the trial court=s order only if we determine, from reviewing the record as a whole, that the trial court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion only if it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Under this standard of review, legal and factual sufficiency of the evidence, although not independent grounds for asserting error, are relevant factors in assessing whether the trial court abused its discretion. Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex. App.CDallas 1999, no pet.). In a legal sufficiency review, we view the evidence in a light favorable to the finding, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). When reviewing the factual sufficiency of the evidence, we examine all of the evidence and set aside a finding only if it is so contrary to the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court=s decision. In re T.L.J., 97 S.W.3d 257, 266 (Tex. App.CHouston [14th Dist.] 2002, no pet.).

B. Did the Trial Court Abuse Its Discretion When It Appointed Anthony Managing Conservator With The Exclusive Right to Designate Residency?

 1. There is Legally and Factually Sufficient Evidence Supporting the Trial Court=s Decision

The best interest of the child is the primary consideration in determining issues of conservatorship. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002); In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000). Because the trial court faces the parties, observes their demeanor, and has an opportunity to evaluate the claims made by each parent, the trial court has wide latitude in determining the best interest. Gillespie, 644 S.W.2d at 451; Martinez v. Molinar, 953 S.W.2d 399, 403 (Tex. App.CEl Paso 1997, no writ). When addressing conservatorship issues, courts may use the nonexhaustive list of Holley factors to determine the child=s best interest. See Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976); see also Vazquez v. Vazquez, --- S.W.3d ---, No. 14-05-01257-CV, 2007 WL 1745324 at *3 (Tex. App.CHouston [14th Dist.] June 19, 2007, no pet.) (applying Holley factors to determine best interest in a conservatorship case). The Holley factors include: (1) the desires of the children; (2) the emotional and physical needs of the children now and in the future; (3) the emotional and physical danger to children now and in the future; (4) parental abilities of the individuals involved; (5) programs available to those individuals to promote the best interest of the children; (6) plans for the children by these individuals; (7) stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371B72.

The evidence recounted above, when viewed in a light favorable to the trial court=s decision, is legally sufficient evidence to support the trial court=s determination that appointing Anthony the managing conservator with the exclusive right to designate residency was in the best interest of the Cain children. In addition, after examining all of the evidence, the trial court=s decision is not so contrary to the evidence as to be clearly wrong and unjust. Because there was sufficient evidence supporting the trial court=s decision, we hold the trial court did not abuse its discretion when it appointed Anthony the managing conservator with the exclusive right to designate the residency of his children. We overrule Carla=s first sub-issue.

2. Anthony Did Not Agree Carla Should Be Appointed Managing Conservator With The Exclusive Right to Designate Residency

Within her brief, Carla contends the evidence is insufficient, in part, because Anthony had agreed that Carla should be appointed managing conservator with the exclusive right to designate primary residency. Because the record is bare of any such agreement, we disagree.

Rule 11 of the Texas Rules of Civil Procedure provides that Ano agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.@ Tex. R. Civ. P. 11. Because there is no written agreement regarding who would be appointed the managing conservator with the exclusive right to designate residence to be found in the record, and no agreement was made in open court and entered of record, this contention is without merit.

3. The Trial Court Did Not Abuse Its Discretion By Granting Anthony Relief He Did Not Request in His Pleadings

Carla contends the trial court abused its discretion because it granted Anthony relief he did not request in his pleadings. In his original petition for divorce, Anthony asked the trial court to appoint both parents joint managing conservators and that it should limit the residence of the children to Colorado and surrounding counties. In Carla=s amended counter-petition for divorce, she asked the trial court to appoint both parents joint managing conservators. In addition, Carla asked the trial court to appoint her as the managing conservator with the exclusive right to designate the primary residence of the children. According to Carla, this state of the pleadings obligated the trial court to designate her as the managing conservator with the exclusive right to designate the primary residence of the children regardless of the evidence introduced during the trial. We disagree with this contention.

Rule 301 requires that a Ajudgment . . . conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.@ Tex. R. Civ. P. 301. The trial court=s judgment in this case complies with this rule. In child custody cases, the paramount concern for a court is the best interest of the child; therefore, pleadings are of little importance, and the trial court=s efforts to exercise broad, equitable powers in determining what will be best for the future welfare of a child should not be hampered by narrow technical rulings. In re B.M., 228 S.W.3d 462, 465 (Tex. App.CDallas 2007, no pet.). Once the parties have properly invoked a court=s jurisdiction, the court is given wide discretion in the proceedings and is vested with decretal powers regarding all relevant custody, control, possession, and visitation matters involving the child. Id. Here, Carla placed the issue of which party would be the managing conservator with the exclusive right to designate the primary residence of the children into the hands of the trial court when she included a request for that relief in her amended counter-petition for divorce. Once Carla placed that issue before the trial court, the trial court then had the discretionary authority to designate the parent as the managing conservator with the exclusive right to designate the primary residence of the children whom it believed would serve the best interest of the Cain children. To require otherwise would impermissibly place adherence to a technical rule of procedure above the best interest of the children.

In any event, even if we were to decide that Carla=s placing this issue in her pleadings was insufficient to allow the trial court to select between the two parents, this issue was tried by consent. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Tex. R. Civ. P. 67. In order to determine whether an issue was tried by consent, a reviewing court must examine the record not for evidence of the issue, but rather for evidence of trial of the issue. Halla v. Halla, No. 14-06-01126-CV, 2007 WL 2367600, at *2 (Tex. App.CHouston [14th Dist.] Aug. 21, 2007, no pet.) (mem. op.). Consent may be found where evidence regarding a party=s unpleaded issue is developed under circumstances indicating both parties understood the issue was in the case, and the other party failed to make an appropriate complaint. Id.

Here, the Cains agreed they should be appointed joint managing conservators of their two children. Therefore, the evidence recounted above in the factual background section of this opinion could only be relevant to the issue of which parent would best serve as the managing conservator with the exclusive right to designate the primary residence of the children and serves as evidence that both parties understood this issue was in the case. In addition, the fact Carla=s counsel asked Anthony the following question A[d]o you think that there is any reason . . . that your wife should not be appointed as the managing conservator who designates the primary residence of . . . your children?@ serves as additional evidence that the parties understood this issue was in the case and to be resolved by the trial court. Finally, despite Carla=s contention otherwise, there was no objection in the record to the trial court=s resolving the issue of which parent would be selected as the managing conservator with the exclusive right to designate the primary residence of the children. Indeed, the record demonstrates that not only did Carla not object to the introduction of such evidence, but during the second hearing, she (1) agreed with the trial court that the issue was one of several to be resolved by the trial court; and (2) did not lodge an objection when the trial court included the right to establish residency on the list of issues to be resolved.[2] Because the trial court did not abuse its discretion when it appointed Anthony the managing conservator with the exclusive right to designate the primary residence of the children, we overrule Carla=s second sub-issue.

Conclusion

Having overruled appellant=s only issue on appeal, we affirm the trial court=s judgment.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed November 29, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

[1] The court took appellee=s Motion to Supplement the Record With Undisputed Exparte Communication under consideration with the case. We granted appellee=s motion and considered the materials addressed in appellee=s motion in the decision of this case.

[2] During the second hearing, the following exchange took place between the trial court and Carla=s counsel:

The Court: You all agreed to joint, managing conservatorship. I don=t think there was any agreement as to who would establish residency.

Counsel: Mr. Cain=s proposed decreeB

The Court: His proposed decree, but right now that=s only a proposed decree. That=s still up to me, as far as I=m concerned.

Counsel: Okay. I=m not saying Bwhat I meant by Aagreed@ was their proposal and our proposal are the same.

The Court: Well, yeah, but once again, your clients have put their family in my handsBthe future of their family.

Counsel: Correct.