In the Matter of the Marriage of Jeffery Dwight Marris and Kara Jane Mullins Marris and In the Interest of Kaitlyn Mullins, a Child--Appeal from 6th District Court of Red River County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00186-CV
______________________________
IN THE MATTER OF THE MARRIAGE OF
JEFFERY DWIGHT MARRIS AND

KARA JANE MULLINS MARRIS

AND IN THE INTEREST OF KAITLYN MULLINS, A CHILD
On Appeal from the 6th Judicial District Court
Red River County, Texas
Trial Court No. 002CV00063
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Kara Jane Mullins Marris and Jeffery Dwight Marris are the parents of Kaitlyn Mullins, a four-year-old child. After a bench trial, the trial court named the parties as joint managing conservators, giving Jeffery the right to establish the domicile of the child. The court further found it to be in the best interest of the child that each parent have possession of the child for alternating one-week periods. Kara appeals, alleging in nine points of error that the trial court abused its discretion by placing primary custody with the father, awarding possession of the child for one week alternating periods, overruling a motion for new trial without a hearing, and that there is no evidence or alternatively the evidence is insufficient or against the great weight and preponderance that it is in the best interest of the child that each conservator be awarded equal periods of possession, and that there is no evidence or the evidence is insufficient or that the great weight and preponderance of the evidence does not support a finding deviating from the standard possession or visitation guidelines.

Factual Background

Jeffery Marris testified that he has a stable job working for Turner Industries and has a home in Red River County, Texas. His parents live near him and are available to help take care of the child when he is working. Jeffery lives in the home where the parties lived the last few years of their marriage, and the child is comfortable and has enough room at that home. He did assist in taking care of the child during the marriage. Kara lives in Broken Bow, Oklahoma, with her parents, and they all smoke, which he believes causes the child to become ill. Jeffery believes Kara is seeing a truck driver. Jeffery works from 3:00 p.m. until 11:00 p.m. and leaves the child with a babysitter. Jeffery and Kara have complied with the temporary visitation schedule that has been in effect.

Kara is not presently employed. She has recently been hospitalized. She acknowledges that Jeffery is a good father and is capable of taking care of the child. Kara denies having a boyfriend. Kara acknowledged that Jeffery has been living in the home with the child for the last two years during their marriage, that it is a nice home, and that his parents live nearby and are good people who have kept the child quite a bit too. Kara further testified she and Jeffery separated when she was five months pregnant, and Jeffery had nothing to do with the child for five months. The child had been with Kara constantly since she was born. Kara and Jeffery resumed living together when the child was six months old. Kara has the child enrolled in a pre-kindergarten class at Broken Bow. When Kara was working, her mother kept the child.

At the conclusion of the hearing, the trial court named the parties as joint managing conservators and found Jeffery should be the conservator with exclusive right to determine the primary residence of the child. The trial court further found that each parent should have possession of the child for alternating one-week periods. The court in its findings of fact and conclusions of law found that the possession periods should deviate from the standard guidelines so as to encourage frequent contact between the child and each parent and to optimize the development of a close and continuing relationship between them.

The law is well established and codified as follows:

1. It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of a child. Tex. Fam. Code Ann. 153.131 (Vernon 2002).

2. In rendering an order appointing joint managing conservators, the court shall: (a) designate a conservator who has the exclusive right to determine the primary residence of the child; and may specify that the conservator may determine the child's primary residence without regard to geographic location. Tex. Fam. Code Ann. 153.134(b)(1) (Vernon 2002).

3. Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of or access to the child for each of the joint conservators. Tex. Fam. Code Ann. 153.135 (Vernon 2002).

4. If joint managing conservatorship is ordered, the best interest of a child ordinarily requires the trial court to designate a primary physical residence for the child. Tex. Fam. Code Ann. 153.136 (Vernon 2002).

5. The standard possession order constitutes a presumptive minimum amount of time for possession of a child by a parent named as joint managing conservator who is not awarded the primary physical residence of a child. Tex. Fam. Code Ann. 153.137 (Vernon 2002).

6. The best interest of the child shall always be the primary consideration of the trial court in determining the issues of conservatorship and possession of and access to a child. Tex. Fam. Code Ann. 153.002 (Vernon 2002).

Did the trial court err in allowing the father to establish

the primary residence of the child?

 

The trial court's determination of conservatorship is reviewed under an abuse of discretion standard. Trial courts have wide discretion with respect to custody, control, possession, support, and visitation matters involving the child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Doyle v. Doyle, 955 S.W.2d 478, 480 (Tex. App.-Austin 1997, no writ). In a review applying an abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are treated as relevant factors in assessing whether the trial court abused its discretion. In re Bertram, 981 S.W.2d 820, 822 (Tex. App.-Texarkana 1998, no pet.); In re Driver, 895 S.W.2d 875, 877 (Tex. App.-Texarkana 1995, no writ). Therefore, the sufficiency of evidence points will be considered in determining the issue of abuse of discretion.

Under an abuse of discretion standard, a trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or when it acts without reference to any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). An abuse of discretion does not occur when the trial court bases its decision on conflicting evidence. Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex. App.-Houston [1st Dist.] 1996, no writ). There is no abuse of discretion if some evidence of a substantive and probative character supports the decision. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.-Houston [1st Dist.] 1993, writ denied).

The evidence presented in this record is very brief, consisting of twenty-six pages of testimony for the entire trial. Kara agreed that Jeffery was capable of taking care of the child. Both parents have had some participation in the child-rearing. Evidence was presented that Jeffery had stable employment and a home that was comfortable to the child. His parents live nearby and are able to assist him with the child when needed.

The trial court faces the parties and the witnesses, observes their demeanor and personality, and feels the forces, powers, and the influences that cannot be discerned by merely reading the record. The trial court is, therefore, in a better position to analyze the facts, weigh the virtues of the parties, and determine what would be in the best interest of a child. Bertram, 981 S.W.2d at 826. In this case, the trial court heard the evidence in making its decision. The trial court stated that it felt the father was in a more stable situation than the mother. We cannot conclude that the trial court abused its discretion in naming the parties as joint managing conservators and designating Jeffery as the conservator to establish the primary residence of the child.

Possession and Access to the Child

Kara further contends the trial court abused its discretion by authorizing alternating equal periods of one-week possession and access by each parent. Kara also contends the trial court erred by deviating from the standard possession order. Joint managing conservatorship does not require an "equal or nearly equal periods of physical possession." Tex. Fam. Code Ann. 153.135. Equal time is neither prohibited nor recommended. Albrecht v. Albrecht, 974 S.W.2d 262, 265 (Tex. App.-San Antonio 1998, no pet.). Kara argues that, due to geographical proximity, this order is not in the best interest of the child and is disruptive. Kara lives in Broken Bow, Oklahoma, and Jeffery lives in Red River County, Texas. We will take judicial notice that Red River County, Texas, and McCurtain County, Oklahoma, are adjoining counties separated by the Red River and that it is approximately forty-four miles from Clarksville, Texas, the county seat of Red River County, to Broken Bow, Oklahoma. Tex. R. Evid. 201(b)(2). Therefore, the geographical proximity would not, standing alone, create an abuse of discretion.

The standard possession order constitutes a presumptive minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not awarded the primary physical residence of a child. Tex. Fam. Code Ann. 153.137. In this case, the trial court awarded Kara considerably more time of possession with the child than the standard order requires. While joint managing conservatorship does not require an equal or nearly equal period of physical possession, such an order is clearly authorized. Albrecht, 974 S.W.2d at 265. In this case, the trial court exceeded the presumptive minimum amount of time Kara otherwise would have with the child. The court found it is in the child's best interest that each party have equal periods of physical possession. It is a reasonable conclusion the child is best served by having an equal amount of time with each parent. This is a deviation in the standard possession order, but one that grants Kara more time with her child. The fact that an appellate court might decide a matter differently does not establish an abuse of discretion when the matter was one solely within the trial court's discretionary authority. In re J.E.P., 49 S.W.3d 380, 386 (Tex. App.-Fort Worth 2000, no pet.). We do not believe the trial court abused its discretion in granting each parent equal time for alternating one-week periods.

Did the trial court err and abuse its discretion in overruling

Kara's motion for new trial?

 

Kara filed a motion for new trial which the trial court overruled without hearing evidence. Attached to her motion for new trial were eight affidavits. The affidavits were from Kara, her mother, her stepfather, her brother, her sister-in-law, and three friends. Generally speaking, a party may not present any additional evidence in a motion for new trial, where that evidence is not newly discovered. See Hillert v. Melton, 64 S.W.2d 991, 992 (Tex. Civ. App.-San Antonio 1933, writ ref'd). However, in matters relating to child custody, it can be error to refuse to grant a motion for new trial, even though the evidence is not newly discovered, where there is an extreme case and the evidence is sufficiently strong. In re C.B.N., 14 S.W.3d 855, 861 (Tex. App.-Beaumont 2000, no pet.); C___ v. C___, 534 S.W.2d 359, 361-62 (Tex. Civ. App.-Dallas 1976, writ dism'd). Even under this relaxed standard, no abuse of discretion is shown unless the evidence presented in support of a motion, and not offered at the original trial, strongly shows that the original custody order would have a seriously adverse effect on the interest and welfare of the child and that presentation of such evidence at another trial would probably change the result. C___, 534 S.W.2d at 362.

In this case, the affidavits presented many of the same allegations that were presented at the trial. Examples are that the mother was the primary caretaker, the hours the father worked, that the father would leave the child with a babysitter during work, that he did not live with and see the child for the first five months of her life, and that he originally denied paternity of the child.

We find the evidence that Kara presented by affidavits was cumulative of other evidence presented at trial. There is no evidence that would strongly show that the original custody order would have a seriously adverse effect on the child and, therefore, there is no indication that such evidence would probably change the result. The point of error is overruled.

We affirm the judgment of the trial court.

 

Jack Carter

Justice

 

Date Submitted: July 14, 2003

Date Decided: July 15, 2003