In the Matter of the Marriage of Martha Ortiz Ivers and Thomas James Ivers and In the Interest of Madison Nicole Ivers and Marin Naomi Ivers, Children--Appeal from 6th District Court of Lamar County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00155-CV

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IN THE MATTER OF THE MARRIAGE OF

MARTHA ORTIZ IVERS AND THOMAS JAMES IVERS AND

IN THE INTEREST OF MADISON NICOLE IVERS AND

MARIN NAOMI IVERS, CHILDREN

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 70060

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Martha Ortiz Ivers and Thomas James Ivers were divorced by an order signed October 22, 2003, by the Sixth Judicial District Court of Lamar County. The court also issued orders for conservatorship and support of the parties' two minor children.

Martha and Thomas were married in 1992 and separated in April 2002. Two girls, ages five and eight, were born to the marriage. When the parties separated, the children remained in the community home with Martha, but visited frequently with Thomas. The trial court appointed the parties as joint managing conservators, but granted Thomas the right to establish the primary residence of the children and ordered that such primary residence remain in Lamar County, Texas. The trial court further ordered the parents to alternate the possession of the children on a weekly basis. The trial court specifically found that the children should not be in the presence of Billy Collard unless Martha married him. The court also divided the property of the parties and ordered child support in the final decree of divorce. Martha appeals on the following issues:

1. The trial court considered inadmissible hearsay in naming the managing conservator of the children.

2. The trial court considered inadmissible irrelevant evidence in naming the managing conservator of the children.

3. The trial court abused its discretion in entering a possession order that varied from the standard possession order.

We affirm the judgment of the trial court.

Hearsay

One of the primary arguments presented on Thomas's behalf was that Martha was involved romantically with Billy Collard, that she had taken the daughters and spent the weekend with him, and that she and the daughters had taken trips with him. Martha acknowledged she had a serious relationship with Billy. During the separation, Thomas came to the home and found Billy hiding in a closet. Billy's ex-wife, Leslie Collard, testified concerning Billy's infidelity. She also was questioned about an e-mail that Billy allegedly sent to a person named "Angel" in June 2000, in which he purportedly discussed wanting to be with another man's wife. When the e-mail was offered into evidence, an objection was made on the grounds that it was not relevant, not authenticated, and was hearsay. The trial court overruled the objection and admitted the exhibit.

Thomas argues that, even if the evidence "may have shown that perhaps there was an error in the introduction of an email," it was not reversible error. We agree the e-mail was inadmissible, but did not cause reversible error. The writing was introduced as a statement of Billy to prove the truth of the assertion that he was interested in the wives of other men. See Tex. R. Evid. 801. It violates the hearsay rule. See Tex. R. Evid. 802.

Admitting and excluding evidence are matters within the discretion of the trial court. To obtain a reversal of a judgment based on the erroneous admission of evidence, an appellant must show that, in light of the entire record, the trial court's ruling was in error and that the error was calculated to cause and probably did cause rendition of an improper judgment. McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); see Tex. R. App. P. 44.1. Rulings on admissibility of evidence are not ordinarily reversible where the evidence in question is cumulative and not controlling on a material issue dispositive of the case. Whitener v. Traders & Gen. Ins. Co., 155 Tex. 461, 289 S.W.2d 233, 236 (1956); see also Turner v. Monsanto Co., 717 S.W.2d 378, 381 (Tex. App. Houston [14th Dist.] 1986, writ ref'd n.r.e.) (reversible error is not ordinarily shown unless the whole case turns on the evidence, admitted or excluded). Thus, we must review the entire record to determine whether the judgment was controlled by the testimony that should have been excluded.

In reviewing the entire record, we find that the "e-mail" evidence is cumulative. There is a great deal of evidence admitted without objection concerning Billy's infidelity. Leslie Collard testified without objection that her ex-husband had been seeing Martha since October 2001 and that this was his second affair. Martha did not dispute the affair.

In reviewing a cause tried before the court, the improper admission of evidence will generally not require reversal of the judgment when there is competent evidence to authorize its rendition. Gillespie v. Gillespie, 644 S.W.2d 449, 450 (Tex. 1982). In Gillespie, the trial court improperly allowed hospital records into evidence detailing one party's alcoholism. The Texas Supreme Court found such error not to be reversible because, even without the hospital records, there was sufficient evidence in the record to support the trial court's determination as to conservatorship. Id.

Further, we find that the evidence of this e-mail was not controlling on the material issue. The trial court had ample evidence on which to decide the custody issue other than the e-mail. The entire record reveals that the trial court heard testimony that both Martha and Thomas were good parents, that the children loved both of them; and that each parent kept the children three days a week and every other weekend during a part of the separation. Jose Antonio Young, Donald Smith, and Joanne Redell all testified that Thomas was a good father and that it would be best for the children to be with him. The court appointed each parent as a joint managing conservator and gave each equal time of physical possession of the children. Based on a review of the entire record, we do not find that the admission of the e-mail "probably caused the rendition of an improper judgment." See Tex. R. App. P. 44.1. Therefore, we deny Martha's first point of error.

Irrelevant Evidence

In Martha's second point of error, she complains of the trial court's admitting irrelevant evidence from Leslie that her child was restricted from traveling more than two hours in order to visit his father, Billy. Further, she objects that Leslie's testimony that Billy did not visit with his parents was also irrelevant.

The evidence was that Martha had a romantic relationship with Billy; that they had taken trips together to Dallas, Oklahoma City, Las Vegas, and California; that he had spent the night at her house while the girls were there; that he lives in Oklahoma City; that she had plans to move there also; that she did not know if they will marry; and that she saw nothing improper in being around him with the children, even though she was married. Ronikaye Joplin, a counselor, testified the children had developed a bond with Billy.

Since the testimony showed that Billy had developed some relationship with the children and that he apparently would be involved in their lives in the future, evidence of his relationships with his own child and other family members has some relevance in determining the best interests of these children.

We do not believe the trial court abused its discretion in admitting this testimony.

Variation from Standard Possession Order

In her third point, Martha argues the trial court abused its discretion in entering a possession order that varied from the standard possession order. Section 153.137 establishes that the standard possession order is 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 exclusive right to designate the primary residence of the child. Tex. Fam. Code Ann. 153.311 .317 (Vernon 2002 & Supp. 2004). Here, the trial court awarded Martha considerably more time of possession with her children than the standard order requires. Equal time of possession of children is neither recommended nor prohibited by statute. See Tex. Fam. Code Ann. 153.135 (Vernon 2002).

The best interests of the children shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, support of, and access to children. Trial courts have wide discretion in determining what is in the children's best interests. The trial court's judgment regarding what serves the best interests of the children with regard to child support and visitation, specifically the establishment of terms and conditions of the conservatorship, is a discretionary function of the trial court and will only be reversed on a determination that the trial court has abused its discretion. This is because the trial court is in the best position to observe the demeanor and personalities of the witnesses and can feel forces, powers, and influences that cannot be discerned by merely reading the record. The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. E.C., Jr. ex rel Gonzales v. Graydon, 28 S.W.3d 825, 829 (Tex. App. Corpus Christi 2000, no pet.).

Martha argues this order had the effect of mandating that she remain close enough to ensure that the children are in Lamar County for school and local activities. The trial court is charged with determining the best interests of the children, which may cause inconvenience to the parents. After hearing all of the evidence, the trial court found it in the best interests of the children for each parent to have equal periods of physical possession. It is a reasonable conclusion the children are well served by having an equal amount of time with each parent. While this is a deviation from the standard possession order, it grants Martha more time with her children. It has been held that the duty to file the reasons for deviation from the standard possession order only occurs when the trial court grants less time of possession than the standard order. Voros v. Turnage, 856 S.W.2d 759, 761 (Tex. App. Houston [1st Dist.], 1993, writ denied). We do not believe the trial court abused its discretion in granting each parent equal time of physical possession of the children.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: April 21, 2004

Date Decided: April 30, 2004