Shannon Maldonado v. Alonzo Maldonado--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION
No. 04-02-00818-CV
Shannon MALDONADO,
Appellant
v.
Alonzo MALDONADO,
Appellee
From the 229th Judicial District Court, Duval County, Texas
Trial Court No. DC-01-292
Honorable Alex W. Gabert, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 16, 2003

AFFIRMED

Shannon Maldonado ("Shannon") appeals the divorce decree entered by the trial court appointing Alonzo Maldonado ("Alonzo") managing conservator and awarding Alonzo the majority of the couple's marital property. In six issues, Shannon contends the trial court erred in (1) failing to enter findings of fact and conclusions of law; (2) admitting the testimony of a licensed social worker who counseled the children; (3) appointing Alonzo primary managing conservator; (4) failing to find a common law marriage; (5) mischaracterizing marital property; and (6) effectively awarding all property to Alonzo. We overrule Shannon's issues and affirm the judgment of the trial court.

Factual Summary

Shannon and Alonzo were formally married on December 3, 1995 and have three children, one daughter and two sons. On December 17, 2001, Shannon left the family's home and separated from her husband. One day later, Alonzo filed for divorce. Shannon counter-petitioned for divorce and sought appointment as the sole managing conservator of the children. A bench trial was held on July 3, 2002, and the trial court signed the final divorce decree on August 5, 2002.

Findings of Fact and Conclusions of Law

In her first issue, Shannon contends the trial court erred in failing to enter findings of fact and conclusions of law. Texas Rule of Civil Procedure 296 provides that a "Request for Findings of Fact and Conclusions of Law" shall be filed within twenty days after a judgment is signed. The record reflects the final divorce decree was signed on August 5, 2002. Therefore, under Rule 296 her request was due on August 26, 2002. Shannon's request was filed on September 24, 2002, more than twenty days after the judgment was signed. Since the request was not timely filed, the trial court was under no duty to prepare and file findings of fact and conclusions of law. DeMello v. NBC Bank-Perrin Beitel, 762 S.W.2d 379, 381 (Tex. App.--San Antonio 1988, no writ) (applying time deadline under former rule). We overrule Shannon's first issue.

Admission of Witness Testimony

In her second issue, Shannon asserts the trial court erred in admitting the testimony of Adela

Trejo ("Trejo"), a licensed social worker who counseled the children. We reject Shannon's initial contention that the trial court erred in admitting Trejo's testimony because she was not properly designated in discovery. The trial transcript reflects that Shannon objected on this basis when Trejo was initially called as a witness. Alonzo immediately responded that a copy of Trejo's report, contact information, and the substance of Trejo's testimony had been provided to opposing counsel. Shannon did not dispute this.

Nevertheless, on appeal, Shannon argues that Trejo "was not designated at all since answers to interrogatories were not filed with the District Clerk." (1) Our review of the record reflects that on May 8, 2002 Shannon filed a motion to compel responses to "interrogatories and discovery requests" (2) originally served on Alonzo on March 14, 2002. The motion includes a fiat setting the matter for hearing on May 21, 2002. The record, however, does not include a transcript of the May 21, 2002 hearing, if any, or a trial court's order. Further, the trial transcript does not reflect that Shannon brought her motion to compel discovery responses to the trial court's attention, nor did Shannon otherwise bring to the trial court's attention how Trejo was not properly designated.

When properly worded, an interrogatory can require a party to list all trial witnesses, no matter what the subject of their testimony. See Tex. R. Civ. P. 192.3(d). Generally, the party has thirty days to serve a written response to such interrogatories on the requesting party. Tex. R. Civ. P. 197.2(a). If the interrogatories are not timely answered, the requesting party may file a motion to compel answers. Tex. R. Civ. P. 215.1(b)(3)(A).

Shannon had the initial burden to show the trial court that Trejo was not properly designated as a trial witness. See Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994); Williams v. Crier, 734 S.W.2d 190, 193 (Tex. App.--Dallas 1987, orig. proceeding) (stating a party asserting the limitation of discovery has the burden of producing evidence regarding the applicability of the particular discovery rule). The record in this matter does not show that a pre-trial ruling was obtained on Shannon's motion to compel answers to interrogatories and discovery requests. In addition, Shannon failed to bring to the trial court's attention her previously filed motion to compel or the relevant time frames that the "interrogatories and discovery requests" were served or due. Without information providing these time frames, the trial court could not determine if Trejo's designation was improper. This information was further needed in light of opposing counsel's statement that Shannon had been provided a report and information on Trejo before trial, which Shannon did not dispute. Under these circumstances, we cannot say that the trial court abused its discretion in allowing Trejo to testify.

Shannon also contends the trial court erred in admitting Trejo's testimony on the grounds that she was not qualified to give certain opinions. Trejo testified that she has a bachelor of arts degree in sociology, a masters degree in clinical social work, and an advanced practitioner license from the State of Texas. She testified at length about her work experience as a social worker in child adoption, child protective service, mental health and mental retardation, and as a therapist in both public and private sectors. Finally, she testified she had a full-time practice as a private therapist since January 2002.

Trejo first saw the children and Alonzo on February 21, 2002 and had six sessions with the family. Each of these sessions lasted approximately one hour. She admitted that she did not meet with Shannon during the sessions, although she believed Shannon had been given her contact information. Trejo testified at trial primarily about the children's interaction with their father. According to Trejo, the children showed their father a lot of affection. They were neat, respectful towards each other, and appeared very happy with their father. Trejo observed that Alonzo would rearrange his work schedule to make the counseling sessions and would seek help from his own extended family to provide for the children, and was concerned about his children's health, security, and behavior. It appeared to Trejo that the family worked like a team, where the eldest child, the daughter, would help her father in caring for the other children. Based on her observations, Trejo opined that Alonzo could provide adequate care for his three children.

A trial court's decision to permit a witness to testify as a lay witness or as an expert witness will not be disturbed on appeal absent a showing of an abuse of discretion. Harnett v. State, 38 S.W.3d 650, 657 (Tex. App.--Austin 2000, pet. ref'd).

Rule 701 provides:

If the witness is not testifying as an expert, the witness'[s] testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness'[s] testimony or the determination of a fact in issue.

Tex. R. Evid. 701. The rule's requirement that a lay witness's opinion be "rationally based on the perception of the witness" requires both: (1) that the witness have personal knowledge gained through any of the witness's senses (sight, hearing, smell, taste, or touch); and (2) that the opinion is one that a reasonable person could draw from the underlying facts. See Harnett, 38 S.W.3d at 658; Webster v. State, 26 S.W.3d 717, 724 (Tex. App.--Waco 2000, pet. ref'd).

Rule 702 regarding expert testimony provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Tex. R. Evid. 702. Under this rule, a two-part test governs whether expert testimony is admissible: (1) the expert must be qualified; and (2) the testimony must be relevant and based on a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).

After reviewing the record, we conclude that Trejo's opinions were based on impressions and conclusions derived from perceptions of what she had seen, heard, and observed during her sessions with Alonzo and the children and on her years of experience and training as a social worker and counselor. See Harnett, 38 S.W.3d at 659; see also Straitway Transport, Inc. v. Mundorf, 6 S.W.3d 734, 738 (Tex. App.--Corpus Christi 1999, pet. denied). As such, Trejo's opinion testimony was permissible because it was based on first-hand knowledge and was reasonable in light of the facts before her. See Harnett, 38 S.W.3d at 659. We conclude the trial court did not abuse its discretion in admitting Trejo's testimony. We overrule Shannon's second issue.

Awarding Alonzo Primary Custody

In her third issue, Shannon contends that the trial court erred by awarding Alonzo primary custody. Because the divorce decree reflects that the parties were appointed joint conservators, we construe Shannon's third issue as challenging the trial court's decision to grant Alonzo the exclusive right to determine the children's domicile.

When a trial court appoints joint managing conservators, a court must either establish the children's residence or designate the conservator with the exclusive right to determine the children's primary residence as well as allocate, independently, jointly or exclusively, the rights and duties of a parent listed under Chapter 151 of the Texas Family Code. See Tex. Fam. Code Ann. 153.134(b) (Vernon 2002). Trial courts have wide discretion with respect to custody, control, possession, support, and visitation matters involving the child. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). In determining which conservator will have exclusive right to establish primary residence under section 153.134(b), the trial court is vested with broad discretion. Dennis v. Smith, 962 S.W.2d 67, 70 (Tex. App.--Houston [1st Dist.] 1997, pet. denied). With respect to factual issues, the reviewing court cannot substitute its judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). If the trial court bases its decision on conflicting evidence, and some evidence supports the decision, the trial court does not abuse its discretion. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998). In other words, to successfully challenge the trial court's ruling, Shannon must establish that the trial court could have reached only one decision. Walker, 827 S.W.2d at 840. Even if this court would have decided the issue differently, we cannot disturb the trial court's decision unless shown to be arbitrary and unreasonable. Id.

Alonzo has cared for the children since Shannon left the family home. He is self-employed and works from 8:00 a.m. to 5:00 p.m. He is responsible for getting the children dressed, taking them to school and to the baby-sitter, and picking them up after work. Alonzo has taken the children to the doctor when needed. Believing that a religious background is important, he has taken the children to church on a weekly basis and has ensured that his daughter attends and completes her religion classes in order to get confirmed. He testified that he disciplines his children and enforces good behavior. The children are doing well in school, having passed all their classes.

Alonzo testified that he loves his children and wants to be the "best dad" for them. He feels he has provided for his children by talking to them and loving them. He has always participated in activities with them. He spends his time with the children by taking them to the park, swimming, and the movies. He has taken them to the beach, the lake, and an out-of-town amusement park. Alonzo wants to be with his children and feels it is his responsibility to care for them because he was raised to believe that a family should stay together. By his observations, the children are happy with him and well-adjusted.

According to Alonzo, Shannon left in December 2001 and was gone for three days before she contacted the family. Prior to the separation, Shannon made it a practice of leaving the home once he arrived home from work. At times, Shannon would not return until the early morning hours. Since the separation, Shannon has not visited the children on a consistent basis. According to Alonzo, at the time of trial, Shannon had not seen the children for about twelve or thirteen weeks. When she did visit with the children, she would only see them for a few hours. The children communicated to Alonzo that when their mother would pick them up, she would leave them at a friend's house and would spend time with her boyfriend and his children. The children also informed him that on one occasion, Shannon permitted a male friend to drive her car while he drank a beer. When the children questioned Shannon about this behavior, Shannon informed them it was "okay." Alonzo was also informed by his children that their mother would slap them. His daughter informed him that on one occasion Shannon threw her down on her chest and kicked her. Additionally, Shannon would smoke in the children's presence notwithstanding the fact that her daughter has severe asthma and cannot be around smoke. Finally, Alonzo testified that the children had witnessed their mother assault him.

Shannon contends the trial court effectively ignored her testimony that Alonzo prevented her from seeing or talking to the children. According to Shannon, Alonzo lied to school officials informing them the trial court had entered temporary orders ordering Shannon to keep away from the children. Shannon also contends the trial court ignored evidence that she lacked adequate transportation in order to consistently visit her children. Shannon testified that family pictures taken by Alonzo with the children during the couple's separation were an effort to deceive the judge because Alonzo had not been involved with the children when the family was together. Shannon maintained that she was the parent primarily responsible for taking care of the kids on a daily basis before the separation.

The evidence in support of the trial court's decision need not be compelling or conclusive to support the trial court's exercise of discretion. In a bench trial, the trial court is able to directly observe the actions and demeanor of the witnesses. As such, the trial court has the advantage of being able to judge the credibility of the witnesses and the weight to be given their testimony, to believe or disbelieve all or any part of the testimony, and to resolve any inconsistencies in the testimony. Lifshutz v. Lifshutz, 61 S.W.3d 511, 515 (Tex. App.--San Antonio 2001, pet. denied). We cannot substitute our judgment for that of the trial court simply because other evidence could exist to support a different conclusion. Barber, 982 S.W.2d at 366. We hold sufficient evidence exists to support the district court's decision that Alonzo have the exclusive right to determine the children's domicile. Therefore, we overrule Shannon's third issue.

Common Law Marriage

In her fifth and sixth issues, Shannon contends that the trial court erred in finding against the great weight and preponderance of the evidence that the couple had not entered into a common law marriage from the inception of their relationship, more than 13 years prior to the divorce. As such, Shannon contends that the trial court erred in mischaracterizing the family home, purchased in January 1992, as Alonzo's separate property.

The trial court did not enter any findings of fact or conclusions of law. In a non jury-trial where no findings of fact or conclusions of law are filed or properly requested, it is implied that the trial court made all necessary findings to support the judgment. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996). Because a reporter's record has been filed, the implied findings may be challenged for legal and factual insufficiency the same as the trial court's findings of fact. See Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).

Shannon had the burden of proving the existence of a common law marriage. See State v. Mireles, 904 S.W.2d 885, 888 (Tex. App.--Corpus Christi 1995, pet. ref'd). When a party complaining of the factual sufficiency of the evidence has the burden of proof at trial it must demonstrate that the adverse finding is contrary to the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In reviewing such a challenge, we first examine the record to determine if there is some evidence to support the finding; if such is the case, we determine, in light of the entire record, whether the finding is so contrary to the overwhelming weight of the evidence so as to be clearly wrong and manifestly unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The three elements of a common law marriage in Texas are: (1) the couple agreed to be married; (2) after the agreement, they lived together as husband and wife; and (3) they represented to others that they are married. See Tex. Fam. Code Ann. 2.401(a)(2) (Vernon 1998); Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993). All three elements must coexist to establish a valid common law marriage. Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.--Houston [1st Dist.] 1991, writ denied).

Alonzo testified that he and Shannon were married on December 3, 1995. According to Alonzo they started living together in " '90-'91 or '92 something like that." Alonzo testified, however, that he did not refer to Shannon as his wife and could not recall if she told people he was her husband. According to Alonzo, they separated three or four times before they had children. Alonzo stated he entered into a contract for deed to purchase a home in January 1992. At the time, Shannon had been living in Houston and seeing another man. Alonzo could not recall how long the separation lasted. He testified, however, that they reunited after he had purchased the home and began making payments on it. Shannon admitted that she had separated from Alonzo for four months and that she was not with Alonzo when she lived in Houston. She also admitted to having a relationship with another man while in Houston and did not consider herself married at the time. We conclude there is some evidence to support the trial court's finding that Shannon and Alonzo were not in a common law marriage from the inception of their relationship. We next consider the other evidence in the record regarding the existence of a common law marriage.

Shannon testified that the couple started living together as husband and wife when she was seventeen years old, some thirteen years before trial. She testified that she considered Alonzo her husband and that they introduced each other to third parties as husband and wife. Shannon also testified that she had left Alonzo on several occasions. Alonzo testified that he "guessed he wanted [Shannon] to be his wife" when they started living together. He also testified that they were married in 1993 or 1994. According to Alonzo, Shannon had been unhappy for "13 years." Shannon relies on the undisputed evidence that two of their children were born before their formal marriage. Finally, she relies on Trejo's testimony that Alonzo admitted in counseling sessions that he and Shannon had been married for nine years and were in a "common law relationship" prior to their formal marriage.

We cannot conclude the trial court's failure to find that Alonzo and Shannon were in a common law marriage from the inception of their relationship is against the great weight and preponderance of the evidence so as to be clearly wrong and manifestly unjust. The undisputed evidence of the birth of their children before December 1995 does not establish a common law marriage. Certainly, such evidence suggests that Shannon and Alonzo had a close relationship, but not necessarily a marital relationship. See Mills v. Mest, 94 S.W.3d 72, 74-75 (Tex. App.--Houston [14th Dist.] 2002, pet. denied) (holding circumstantial evidence offered by appellants of the existence of a common law marriage was insufficient where such evidence was just as consistent with a close non-marriage relationship). Additionally, Trejo's testimony regarding Alonzo's admission that the couple was in a common law marriage is conclusory and is insufficient, standing alone, to establish the existence of a common law marriage. See Quinonez-Saa v. State, 860 S.W.2d 704, 710 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd). Alonzo's testimony may be internally conflicting, and Shannon's testimony that the couple was in a common law marriage from the time they lived together directly conflicts with Alonzo's testimony. Conflicts in the evidence, however, must be resolved by the trial court, who may choose to believe or disbelieve all or any part of the testimony. See Lifshutz, 61 S.W.3d at 515. Therefore, we overrule Shannon's fifth issue.

In her sixth issue, Shannon contends that by not finding they were in a common law marriage, the trial court erred in characterizing the home as Alonzo's separate property. The character of property as separate or community is determined at the time of inception of title. See Henry S. Miller Co. v. Evans, 452 S.W.2d 426, 430 (Tex. 1970); Villarreal v. Villarreal, 618 S.W.2d 99, 100 (Tex. Civ. App.--Corpus Christi 1981, no writ). Inception of title occurs when a party first has a right or claim to the property by virtue of which title is finally vested. See Strong v. Garrett, 148 Tex. 265, 224 S.W.2d 471, 474 (1949). Where status of separate property is fixed at the time of acquisition, that status cannot be altered by the fact that the remainder of the purchase price is paid for with funds of the community estate. See Odstrcil v. Odstrcil, 384 S.W.2d 403, 406 (Tex. Civ. App.--Houston 1964, writ dism'd).

As noted above, the evidence at trial reflected Alonzo entered into a contract for deed in January 1992 and began making payments and improvements on the home. At the time, Shannon was living in Houston and did not consider herself married. Based on the trial court's implied finding on the issue of common law marriage, we conclude that the trial court did not err in characterizing the home as Alonzo's separate property. We overrule Shannon's sixth issue.

DIVISION OF PROPERTY

Finally, Shannon argues that the trial court erred by "effectively awarding" all property to Alonzo. Shannon contends the trial court's award to her of all property in her possession was a meaningless award since she had nothing in her possession. Shannon specifically challenges the trial court's award of personal items.

The trial court has broad discretion in dividing the marital estate in a manner that the court deems just and right. See Tex. Fam. Code. Ann. 7.001 (Vernon 1998); Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). We review a trial court's ruling under an abuse of discretion standard. See Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974).

In dividing the community property, the trial court awarded each spouse one half of the value of improvements done to the home during the marriage, Alonzo was awarded the 1998 Tahoe, and each were awarded the personal property in their possession or control. Shannon testified that she did not want the Tahoe because she could not afford the payments on that vehicle. When specifically questioned as to what items she wanted, she stated she wanted certain knick-knacks, the truck, and the house. When Alonzo was questioned as to what items he wanted, he testified that he wanted all items necessary to raise the children. In light of the fact that the trial court granted Alonzo the exclusive right to determine the children's domicile, we cannot say that the trial court's division of the marital estate was an abuse of discretion. We overrule Shannon's fourth issue.

Conclusion

We overrule Shannon's six issues and affirm the judgment of the trial court.

Phylis J. Speedlin, Justice

1. Under our current rules, interrogatory responses are not required to be filed with the District Clerk. See Tex. R. Civ. P. 191.4(a)(2).

2. The record before this court fails to specify what is meant by "discovery requests."