In the Interest of D.B.W. and H.B.W., Children--Appeal from County Court at Law No 2 of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00057-CV

In the Interest of

D.B.W. and H.B.W., Children,

From the County Court at Law No. 2

Johnson County, Texas

Trial Court No. D200400017

MEMORANDUM Opinion

Appellant Troy Webb appeals the trial court s judgment in this suit to modify the parent-child relationship. We will affirm.

Background

Appellee, Jayna Mong, filed a Petition to Modify the Parent-Child Relationship, seeking a change in the amount of Troy s child support payments and in his possession of and access to the children, D.B.W. and H.B.W, because she had moved over 100 miles from Troy s residence. Troy filed an answer and a cross-petition in which he sought to modify his child support obligations and to require Jayna to pay a portion of the travel costs associated with visitation.

While the petitions were pending, Jayna and her husband, Tim, had a physical altercation. They both had several glasses of wine and began to argue. During the argument, Jayna threw a phone at her husband, grabbed him on the left side of the neck, and struck him on the side of the face. Tim carried their infant daughter upstairs in a carrier. Jayna grabbed the handle of the infant carrier but was forced to let go so that the baby would not be injured. Tim took the infant into the master bedroom and locked the door. He called 9-1-1 but hung up before talking to an operator. Nevertheless, police officers were dispatched to the house.

After interviewing the couple, police arrested Jayna for assault, criminal mischief, and domestic violence. She was released the following day on an appearance bond, with the restrictions that she have no contact with her husband and that she refrain from the use of alcohol and drugs. She pled guilty to criminal mischief and domestic violence,[1] and was sentenced to twelve months of deferred adjudication and ordered to complete thirty-six domestic violence classes.

Upon learning of an altercation between Jayna and her husband, Troy filed an amended counter-petition in which he sought to be named the sole managing conservator of D.B.W. and H.B.W., establish a visitation order that provided protection for the children during visits with Jayna, and obtain child support from Jayna. Troy also requested emergency temporary orders and an emergency temporary restraining order.

A bench trial was held. The court found that it was in the best interest of the children for the parents to remain joint managing conservators, and for Jayna to maintain the exclusive right to determine the primary residence of the children. Troy filed a Motion for New Trial, which the trial court denied. On appeal he brings eight issues.

Troy contends that the trial court abused its discretion by failing to modify the order to appoint him sole managing conservator despite evidence of a physical altercation between Jayna and her husband. He specifically challenges the sufficiency of the trial court s Finding of Fact XIV which states: [t]he emotional health or physical well-being of the children would not be endangered thereby. Troy also challenges the following Conclusions of Law:

Since a Protective Order was not rendered under Chapter 85, Title 4, Texas Family Code, against Jayna Mong during the two year period preceding or during pendency of this matter, there is no history or pattern of family violence by a parent directed against another.

Even though there is a rebuttable presumption that the appointment of a parent as the conservator who has exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of present or past physical abuse by the parent directed against the other parent or a spouse, this presumption was rebutted by credible evidence that such appointment was in the best interest of the children and the Court finds making such appointment of parent conservator with exclusive right to determine residence of children would not endanger their physical health or emotional welfare and the possession order rendered was designed to protect the safety and well being of any person who had been a victim of family violence committed by a parent.

He also argues that the trial court abused its discretion by failing to enter an order designed to protect the safety and well-being of his children, and he argues the trial court abused its discretion in denying his Motion for New Trial.

Standard of Review

A trial court has broad discretion in child custody matters. Pena v. Pena, 8 S.W.3d 639, 639 (Tex. 1999) (per curiam); In re J.R.P., 55 S.W.3d 147, 151 (Tex. App. Corpus Christi 2001, pet. denied). Thus, we review child custody orders under an abuse-of-discretion standard. See In re T.J.S., 71 S.W.3d 452, 458 (Tex. App. Waco 2002, pet. denied); J.R.P., 55 S.W.3d at 151.

We do not conduct an independent review of findings of fact in a child custody case under traditional legal and factual sufficiency standards. See In re J.C.K., 143 S.W.3d 131, 135 (Tex. App. Waco 2004, no pet.); London v. London, 94 S.W.3d 139, 143-44 (Tex. App. Houston [14th Dist.] 2002, no pet.); cf. Norris v. Norris, 56 S.W.3d 333, 338 (Tex. App. El Paso 2001, no pet.). Rather, legal and factual sufficiency are factors which can be considered in determining whether an abuse of discretion has occurred. J.C.K., 143 S.W.3d at 135; London, 94 S.W.3d at 143-44; accord Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).

A trial court abuses its discretion when it acts without reference to any guiding rules and principles or in an arbitrary and unreasonable manner. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). A trial court has no discretion in deciding what law applies or in applying that law to the facts of the case. In re Kuntz, 124 S.W.3d 179, 181 (Tex. 2003) (orig. proceeding).

Therefore, a trial court's conclusions of law are also reviewable to determine whether the law was incorrectly applied to the facts. Chavez v. Chavez, 148 S.W.3d 449, 456 (Tex. App. El Paso 2004, no pet.). Conclusions of law are reviewed de novo as legal questions. Id. (citing Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex. App. Waco 1997, writ denied). Erroneous conclusions of law are not binding on the appellate court and if the controlling findings of fact will support a correct legal theory, are supported by the evidence and are sufficient to support the judgment, then the adoption of erroneous legal conclusions will not mandate reversal. Chavez, 148 S.W.3d at 456.

Modification

Troy contends that Texas Family Code section 153.004, which requires the trial court to take a history of domestic violence into account when making conservatorship and possession determinations applies in this case and mandates that the court modify the order. Tex. Fam. Code Ann. 153.004(b) (Vernon Supp. 2006). A single act of violence or abuse can constitute a history of physical abuse for purposes of this section. In re Marriage of Stein, 153 S.W.3d 485, 489 (Tex. App. Amarillo 2004, no pet.). However, the plain language of section 153.004(b) indicates that it prohibits the trial court from appointing joint managing conservators if credible evidence is presented of a history or pattern of past or present physical abuse by one parent directed against the other parent or a spouse. Tex. Fam. Code Ann. 153.004(b). In the present case, the Final Decree of Divorce named the parties as joint managing conservators, and Troy sought only to modify that order.

Family Code section 156.101 provides that a trial court may modify an order appointing conservators and establishing conditions of conservatorship if (1) modification would be in the best interest of the child and (2) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed. Id. 156.101(1) (Vernon Supp. 2006). Although an order deferring adjudication of a person who is a joint managing conservator for an offense involving family violence is a material and substantial change of circumstances sufficient to justify a modification of an existing court order, the trial court is not compelled to modify an order in such a circumstance. In re R.T.H., 175 S.W.3d 519, 522 (Tex. App. Fort Worth 2005, no pet.); Tex. Fam. Code Ann. 156.1045(a) (Vernon 2002). In a modification proceeding, as with all suits regarding conservatorship of a child, [t]he best interest of the child shall always be the primary consideration of the court. See Tex. Fam. Code Ann. 153.002 (Vernon 2002); In re C.Q.T.M., 25 S.W.3d 730, 734 (Tex. App. Waco 2000, pet. denied).

In evaluating whether an order is in a child s best interest, we may consider several factors, including, but not limited to: (1) the child s desires, (2) the current and future physical and emotional needs of the child, (3) the current and future physical danger to the child, (4) the parental abilities of the person seeking custody, (5) whether programs are available to assist the person seeking custody in promoting the best interests of the child, (6) plans for the child by the person seeking custody, (7) the stability of the home, (8) acts or omissions of the parent that may indicate that the parent-child relationship is not proper, and (9) any excuse for acts or omissions of the parent. Long v. Long, 144 S.W.3d 64, 68 (Tex. App. El Paso 2004, no pet.) (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)); see also In re Doe 2, 19 S.W.3d 278, 300 n.20 (Tex. 2000) (recognizing that intermediate courts employ the Holley factors to ascertain best interest in conservatorship cases). In the context of custody modification, other factors to be considered include the child's need for stability and the need to prevent constant litigation in child custody cases. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000).

 Desires of the Children

The record does not reflect the desires of the children other than that, if given a choice, they would divide their time equally between their parents.

Physical and Emotional Needs of the Children

  Toni Driver, an investigator ordered by the trial court to prepare a social study, noted that both homes are suitable for raising children. However, she also indicated that the children are settled in their home in Colorado, have many friends, and are involved in church and extracurricular activities. The Mongs have a very active family environment, enjoy outdoor activities such as fishing, and have family night every Wednesday. Although both families could provide for the physical and emotional needs of the children, Driver stated that she would recommend that the children remain with their mother rather than uproot them from their home.

Dr. Norman L. Coad, a psychotherapist employed by Troy to provide counseling for the children, recommended that Troy be granted custody. He felt that the counseling he was providing, in addition to the loving atmosphere the Webbs provided, was beneficial for the children. However, he admitted that he never met the Mongs and only knew about them from reading the report concerning the altercation between Jayna and Tim.

Physical Danger to the Children

  Jayna testified that she and her husband have never had another incident similar to the altercation at issue and that she does not have a history of physical confrontations in past relationships. The Mongs attend marriage counseling with a licensed professional counselor, Julie O Dell, who indicated that physical arguments were not normal for the Mongs and that future physical contact between them was unlikely. O Dell does not believe that the Mongs put the children in danger and does not recommend that the children be removed from the home. Patty Allen, a caseworker, testified that there was no evidence of abuse, neglect, or maltreatment of the children. Further, Jayna, at the time of trial, had attended seventeen of the thirty-six domestic violence courses she was ordered to take.

Parental Abilities

The evidence admitted at trial indicates that both parents are able to provide for the children and are capable parents.

Programs Available to Assist Person Seeking Custody

Troy sought the assistance of Dr. Coad to help the children. He, like Jayna, has extended family and a spouse to assist in caring for the children.

Plans for Child by Person Seeking Custody

Troy plans for the children to live with him and his wife in Texas. However, Driver felt that the home environments were similar and that it would not benefit the children to uproot them and move them to Texas.

Stability of Home

Evidence was admitted concerning the stability of both homes. Both Troy and Jayna have remarried, and the children state that they love both stepparents. The altercation between the Mongs was a one-time occurrence and the children state that they feel safe and loved in both homes.

Parent s Acts or Omissions, and Excuses for such Acts or Omissions

  The evidence relevant to these factors is discussed above.

This evidence supports the trial court s finding that the denial of Troy s request to modify the order was in the best interest of the children.[2] Thus, we hold that the trial court did not abuse its discretion. The controlling findings support the judgment and reversal is not mandated. See Chavez, 148 S.W.3d at 456. Accordingly, we overrule issues one, two, three, four and six.

Order Designed to Protect the Safety and Well-Being of the Children

In his fifth and seventh issues, Troy argues that the trial court abused its discretion in failing to enter an order designed to protect the safety and well-being of the children. Texas Family Code section 156.1045 provides:

an order deferring adjudication of a person who is a joint managing conservator for an offense involving family violence is a material and substantial change of circumstances sufficient to justify a modification of an existing court order that sets the terms and conditions of conservatorship or for the possession of or access to a child to conform the order to the requirements of Section 153.004(d).

Tex. Fam. Code Ann. 156.1045(a). The order designed to protect the safety and well-being of the children may include any of the following requirements:

(A) the periods of access be continuously supervised by an entity or person chosen by the court;

(B) the exchange of possession of the child occur in a protective setting;

(C) the parent abstain from the consumption of alcohol or a controlled substance, as defined by Chapter 481, Health and Safety Code, within 12 hours prior to or during the period of access to the child; or

(D) the parent attend and complete a battering intervention and prevention program as provided by Article 42.141, Code of Criminal Procedure, or, if such such a program is not available, complete a course of treatment under Section 153.010.

Tex. Fam. Code Ann. 153.004(d) (Vernon Supp. 2006).

The trial court found that Jayna committed family violence and ordered her to continue with marriage counseling and comply with all recommendations of the therapist, comply with all terms and conditions of her probation, and to provide counseling for the children. The trial court also ordered that Jayna and Troy were each permanently enjoined from consuming or using alcohol or any controlled or illegal substance within the twenty-four hours before or during the period of access to the children, and from possessing alcohol or permitting alcohol to be consumed while the children are present. As this order complies with section 153.004(d), we find that the trial court did not abuse its discretion by failing to enter an order to protect the safety and well-being of the children. Accordingly, we overrule Troy s fifth and seventh issues.

Motion for New Trial

A trial court s denial of a motion for new trial is reviewed for abuse of discretion. Director v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987). An abuse of discretion occurs when a trial court fails to correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).

Troy sought a new trial on two grounds: (1) under the authority of Texas Family Code section 153.004(b), the trial court erred in appointing the parties as joint managing conservators, and (2) Jayna did not rebut the section 153.004(b) presumption that her appointment as the managing conservator, with the exclusive right to determine the primary residence of the children, was not in the best interest of the children. See Tex. Fam. Code Ann. 153.004(b). Having determined that section 153.004(b) does not apply in the present case and that the order entered was in the best interest of the children, we find that the trial court did not abuse its discretion in denying Troy s motion for new trial. We overrule his eighth issue.

Conclusion

Having overruled Troy s eight issues, we affirm the judgment of the trial court.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed February 21, 2007

[CV06]

[1] Jayna contends that she did not plead guilty to domestic violence although she testified to the contrary at trial. Her probation officer stated that the domestic violence charge was dropped. However, the Disposition and Final Order in the criminal proceeding indicates that she pled guilty to domestic violence.

[2] The record reflects that the ad litem s recommendation is consistent with the trial court s order.