Elizabeth Jennings Chapman v. Calvin C. Chapman, IV--Appeal from 216th Judicial District Court of Kendall County

MEMORANDUM OPINION
No. 04-06-00017-CV
Elizabeth Jennings CHAPMAN,
Appellant
v.
Calvin C. CHAPMAN, IV,
Appellee
From the 216th Judicial District Court, Kendall County, Texas
Trial Court No. 03-414
Honorable Michael Peden, Judge Presiding (1)

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: June 20, 2007

 

AFFIRMED

 

Elizabeth Jennings Chapman ("Elizabeth") appeals from a divorce decree appointing Calvin C. Chapman, IV ("Calvin"), sole managing conservator of their two daughters. On appeal, Elizabeth contends that the trial court erred in: (1) allowing the court-appointed expert witness to testify when the expert had not yet completed her report; (2) denying Elizabeth's supplemental motion for continuance; and (3) denying Elizabeth's request for a jury instruction prohibiting the appointment of a person as joint managing conservator when the person had a history of committing physical or sexual abuse against a family member. We affirm.Expert Testimony and Motion for Continuance

In her first issue, Elizabeth contends that the trial court erred in allowing Dr. Dina Trevino, the court-appointed psychologist, to testify because Trevino had not completed a social study or report at the time of her testimony. In her second issue, Elizabeth contends that the trial court erred in denying her supplemental motion for continuance because denying the motion allowed Trevino to testify without completing a report. Thus, in both issues, Elizabeth asserts the same argument: that the trial court erred because Trevino should not have been allowed to testify without first completing a social study and report. Because both issues involve the trial court's admission of expert testimony, we address the issues together and review the court's decisions under an abuse of discretion standard. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (admission or exclusion of evidence reviewed for abuse of discretion). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000). We will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1; Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). In determining whether the admitted or excluded testimony probably resulted in the rendition of an improper judgment, we must review the entire record. See Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). Typically, error on questions of evidence is not reversible unless the complaining party can demonstrate that the judgment turns on the particular evidence excluded or admitted. Able, 35 S.W.3d at 617; Doncaster v. Hernaiz, 161 S.W.3d 594, 601 (Tex. App.-San Antonio 2005, no pet.).

The trial court appointed Psychologist Dina Trevino as an investigator on July 18, 2005, and ordered her to conduct psychological evaluations of the Chapmans and their daughters as well as a social study of the daughters and each of the Chapmans' homes. The court ordered Trevino to file a written report of her findings by October 15, 2005. Although the court's order provided Trevino with a deadline of October 15, 2005, the case went to trial on September 6, 2005, and Trevino was unable to complete all of the assigned tasks by that date.

Before Trevino testified, Elizabeth filed a motion to strike Trevino's testimony on the ground that Trevino had not completed all of the court-ordered tasks. At a hearing on the motion, Trevino testified that she completed the interviews and psychological testing of both of the Chapmans and that she also met with the children and evaluated them with their father. In addition, she had spoken with some of the individuals whose names were provided to her by each of the Chapmans. She testified that she had not completed the following tasks: home studies of the children at each of the Chapmans' homes; an evaluation of the children with their mother; some of the interviews of people whose names were provided to her by the Chapmans; and a report of her findings. Trevino indicated to the trial court that she could not provide a final conclusion but that she was prepared to testify about her interviews with the Chapmans and the results of each of the Chapmans' psychological testing. At the conclusion of the hearing, the court denied Elizabeth's motion and allowed Trevino's testimony.

Assuming, without deciding, that the trial court erred in admitting Trevino's testimony, the error was harmless because the judgment did not turn on her testimony. See Able, 35 S.W.3d at 617; Doncaster, 161 S.W.3d at 601. Even without Trevino's testimony, the record contains considerable evidence to support the jury's verdict. The record includes testimony that Elizabeth kept the children isolated from Calvin and his family in the two years following the Chapmans' separation and that the children's attitude toward Calvin changed drastically for the worse during that time period. Calvin, his parents, and two family friends testified that Calvin and the children had a happy, loving relationship before the Chapmans' separation. Following the Chapmans' separation, evidence showed that the children displayed anger and hatred toward Calvin, including calling him derogatory names, stating that they never wanted to see him again, accusing him of abusing them, and refusing to speak or make eye contact with him during visits. Calvin testified that he believed Elizabeth mentally poisoned the children against him. Similarly, a long-time friend of Elizabeth's, Diane Flynn, testified that she felt that the children had been "poisoned mentally by their mother."

Ruth Goss, a family friend whose grandchildren played with the Chapmans' children once or twice a week for two years, also testified about the change in the children's behavior after their parents' separation. Goss testified that before the separation, the children would give her a hug and appear happy to see her, but that when she saw the Chapmans' younger daughter, A.C., at the children's school after the separation, A.C. would not make eye contact with her. Goss also testified that when she saw Elizabeth and the children at a grocery store after the Chapmans' separation, Elizabeth was cold to her, and the children would not speak to her. When she asked Elizabeth if the children could return to her house to play with her grandchildren, Elizabeth declined. In addition, Arthur Murphey, a counselor who supervised five visits between the children and Calvin, testified that when he and Calvin took the Chapmans' older child, K.C., to a bowling alley during a visit, K.C. told Murphey that she would bowl if he promised not to put in his report that she had fun. In addition, Murphey testified that K.C. was originally excited to bowl, but that after she called Elizabeth from the restroom, she decided she no longer wanted to bowl.

The record also includes evidence that Elizabeth had health problems, was unemployed, and did not have definite plans for employment in the future. Elizabeth testified that she had sciatica in her back and a nerve disease in her foot. She testified that she worked as a secretary in the past but that she was currently unemployed because it was difficult for her to walk or sit for extended periods of time. At the time of trial, Elizabeth and the children were living with her mother. When asked how she intended to support the children, she stated that she hoped to be able to go back to college to become a teacher.

When Calvin was asked about his plans for himself and the children if he became managing conservator, he testified that he wanted the court to appoint the Rachel Foundation, an intensive, live-in, therapy program, to help him reunite with his children. He stated that the program specialized in situations in which one parent mentally poisoned children against the other parent. If the court did not appoint the Rachel Foundation, Calvin testified that he, the children, and a therapist could live with his mother and father while he and the children reunited. He testified that once he and the children were reconciled, all of them would remain in counseling but would return to a regular routine of work and school. Calvin owned his own engineering firm, and he testified that he would be able to take the necessary time off from work for intensive counseling because he had a strong group of staff members who could maintain the business while he was gone. After examining the record, we conclude that there is ample evidence aside from Trevino's testimony to support the jury's decision to appoint Calvin sole managing conservator. We also note that Trevino's testimony was limited to the tasks she completed. The limited nature of her testimony was made clear to the jury when she specifically testified that she was not making a custody recommendation and when she was cross-examined at great length about the incompleteness of her work. Considering the other evidence that could support the jury's verdict and the limited nature of Trevino's testimony, we conclude that Elizabeth has not demonstrated that the verdict turned on Trevino's testimony or that the testimony caused the rendition of an improper judgment. See Able, 35 S.W.3d at 617; Doncaster, 161 S.W.3d at 601; Bott v. Bott, 962 S.W.2d 626, 629 (Tex. App.-Houston [14th Dist.] 1997), no pet.. Therefore, any error in the admission of Trevino's testimony was harmless.

Because we hold in the first issue that any error in the trial court's admission of Trevino's testimony was harmless, and because Elizabeth's sole argument in the second issue is that the court's denial of her motion for continuance was error because it allowed Trevino's testimony, we hold that any error in the court's denial of Elizabeth's motion for continuance was also harmless. State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex. 1988) (denial of motion for continuance reviewed for abuse of discretion). In addition, we note that this case was pending for almost two years before it went to trial and that Calvin had not seen his children for nearly sixteen months of that time and had only recently started seeing them in supervised visitations. We overrule Elizabeth's first and second issues. Jury Charge

In her third issue, Elizabeth contends that the trial court erred in denying her request for a jury instruction modeled after Texas Pattern Jury Charge 215.3, which states that a person may not be appointed a joint managing conservator if that person has a history or pattern of past or present child neglect or of physical or sexual abuse directed against a parent, spouse, or child. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Family PJC 215.3 (2006). We review a trial court's decision to submit or refuse a particular instruction under an abuse of discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). The omission of an instruction is reversible error only if the omission probably caused the rendition of an improper judgment. Id.

Assuming, without deciding, that the trial court erred in denying Elizabeth's request, the error was harmless because the omission of the instruction did not cause the rendition of an improper judgment. First, the jury heard all of the allegations of physical and sexual abuse lodged against Calvin. Kathleen Gleason, Elizabeth's therapist, testified that she believed Calvin sexually abused his children and abused Elizabeth. Carol Robinson, a victim services coordinator, testified that she took victim-impact statements from the children in which the children alleged sexual and physical abuse by Calvin. The statements were admitted into evidence. Elizabeth's mother testified that she witnessed Calvin physically abusing one of the children at a restaurant. Joni Chavez-Martell, who counseled Elizabeth and the children, testified about the children's statements to her regarding physical and sexual abuse by Calvin. Elizabeth's attorney also addressed the allegations of abuse in her closing arguments. Thus, the jury was well aware of the allegations of abuse. Second, the requested instruction, which addressed only the appointment of joint managing conservators, was not relevant to the jury's ultimate decision to appoint Calvin sole managing conservator. Considering that the jury heard evidence of all of the allegations of abuse against Calvin and that the requested instruction prohibited only a form of conservatorship that the jury did not ultimately choose, we conclude that the omission of the instruction did not cause the rendition of an improper judgment. See Shupe, 192 S.W.3d at 579. We overrule Elizabeth's third issue.

 

Conclusion

We affirm the trial court's judgment.

 

Alma L. L pez, Chief Justice

 

1. Sitting by assignment. See Tex. Gov't Code Ann. 74.056 (Vernon 2005).