DAVID GENE SMITH v. JOANN SMITH--Appeal from 107th District Court of Cameron County

NUMBER 13-03-508-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DAVID GENE SMITH, Appellant,

v.

JOANN SMITH, Appellee.

On appeal from the 107th District Court

of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Castillo and Garza

Memorandum Opinion by Justice Castillo

This is an appeal from a judgment granting a divorce between appellant David Gene Smith and appellee Jo Ann Smith and ordering child support for their minor child. By six issues, Mr. Smith asserts: (1) the trial court lacks jurisdiction; (2) Mrs. Smith's history of family violence negates appointment of Mrs. Smith as sole managing conservator of the child; (3) the child support amount ordered is unjust; (4) the separate property division is unjust; (5) the community debts are assignable to Mrs. Smith; and (6) he was denied appointment of counsel and the opportunity to attend the final hearing. We affirm.

I. Relevant FactsOn April 1, 2003, Mrs. Smith filed an original petition seeking dissolution of her marriage to Mr. Smith and division of the community estate. In the petition, Mrs. Smith identified the parties' minor child and requested conservatorship of and support for the child. // See Tex. Fam. Code Ann. 6.406 (a)-(b) (Vernon 1998); see also Tex. Fam. Code Ann. 101.032(a) (Vernon 2002). Mrs. Smith also alleged that she had been a domiciliary of the state of Texas for the preceding six-month period and a resident of Cameron County for the preceding ninety-day period. Tex. Fam. Code Ann. 6.301(1) (Vernon 1998). Mr. Smith filed an original answer. In the answer, Mr. Smith included a request for appointment of an attorney ad litem to represent him and for issuance of a bench warrant to allow him to appear at the final hearing and present evidence because he was in prison. //

The final hearing convened on August 1, 2003. Mr. Smith was not present. The trial court asked if Mr. Smith was properly served. // Mrs. Smith's counsel said yes, and the hearing proceeded. Mrs. Smith testified and requested dissolution of the marriage, division of the community estate, and sole managing conservatorship of the minor child. The trial court took judicial notice of its file. It signed a post-answer default decree of divorce that dissolved the parties' marriage, named Mrs. Smith as sole managing conservator of the child and Mr. Smith as possessory conservator, and ordered Mr. Smith to pay monthly child support in the amount of $142.38 beginning September 1, 2003.

II. Jurisdiction

In his first issue, Mr. Smith argues that Mrs. Smith was not a resident of Cameron County for the ninety days preceding filing the petition. He also argues that Mrs. Smith sought child support in another court in cause number 2002-02-486-A, when Mrs. Smith, using her maiden name, resided in Cameron County. Mrs. Smith responds that the issue of residency is a fact issue to be determined by the trial court and it should not be disturbed on appeal absent a clear abuse of discretion, citing Vinson v. Vinson, 340 S.W.2d 562, 563 (Tex. Civ. App. Waco 1961, no writ).

The live pleading alleges residency. Mrs. Smith testified as to residency. The trial court found that she was a resident. The judgment reflects she met residency requirements.

Every reasonable presumption will be indulged to sustain a judgment and nothing will be presumed against it; all prior requisites to the rendition of a judgment will be presumed to have been fulfilled and the recitals in a judgment will be presumed to state the truth. Miller v. Hood, 536 S.W.2d 278, 285 (Tex. Civ. App. Corpus Christi 1976, writ ref'd. n.r.e.). Absent direct proof to the contrary, recitations in a judgment are presumed true and control the rest of the record. Allen v. Bolton, 416 S.W.2d 906, 911 (Tex. Civ. App. Corpus Christi 1967, no writ).

Because Mrs. Smith pleaded and testified to residency and the judgment is presumptively correct, we conclude the trial court had jurisdiction. Miller, 536 S.W.2d at 285; Allen, 416 S.W.2d at 911. We overrule the first issue presented.

III. Conservatorship

In his second issue, Mr. Smith argues that the best interest of the child negates appointment of Mrs. Smith as sole managing conservator because of her history of family violence. Mrs. Smith counters that the trial court did not abuse its discretion in granting her sole conservatorship.

A. The Law

In a suit, the court may appoint a sole managing conservator or may appoint joint managing conservators. Tex. Fam. Code Ann. 153.005 (a) (Vernon 2002). A managing conservator must be a parent, a competent adult, an authorized agency, or a licensed child-placing agency. Tex. Fam. Code Ann. 153.005 (b) (Vernon 2002). The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code Ann. 153.002 (Vernon 2002). In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party's spouse, a parent of the child, or any person younger than eighteen years of age, committed within a two-year period preceding the filing of the suit or during the pendency of the suit. Tex. Fam. Code Ann. 153.004 (Vernon 2002). Subject to the prohibition in section 153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because it would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. Tex. Fam. Code Ann. 153.131(a) (Vernon 2002). It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. Tex. Fam. Code Ann. 153.131(b) (Vernon 2002). A finding of a history of family violence involving the parents of a child removes the presumption under this subsection. Id.

Trial courts have wide discretion in determining what is in the best interest of the child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re H.S.N., 69 S.W.3d 829, 831 (Tex. App. Corpus Christi 2002, no pet.). The trial court's judgment regarding what serves the best interest of the child with respect to child support and visitation, specifically the establishment of terms and conditions of the conservatorship, is a discretionary function of the trial court which will only be reversed upon a determination that the trial court has abused its discretion. In re H.S.N., 69 S.W.3d at 831. 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. Id. The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles, that is whether it acted arbitrarily or unreasonably. Id. "In a suit, there is a rebuttable presumption that [a] standard possession order . . . (1) provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and (2) is in the best interest of the child." Tex. Fam. Code Ann. 153.252 (Vernon 2002). //

B. The Record

Mrs. Smith testified that Mr. Smith was in prison for assault with a deadly weapon. She testified he made threats through the parties' minor child to her and corresponded with her from prison. The following ensued:

[Counsel]: During your marriage to David Smith, did he physically abuse you?

Mrs. Smith: Yes.

[Counsel]: Has he burned you?

Mrs. Smith: Yes.

[Counsel]: Your Honor, she has several scars on her body. Should we prove those up to the court requesting her testimony?

The Court: The Court will accept her word on it. Are you asking these questions in order to request a permanent injunction?

[Counsel]: We're requesting that she be designated as sole managing conservator of the child.

The Court: Plus the permanent injunction, a protective order?

[Counsel]: At this time, no.

The Court: Okay. All right. Then your request will be granted. No visitation will be granted until further orders from the court.

Mrs. Smith's counsel further asked, "And because of the recent threats made to you, the history of family violence in your marriage, you're asking the court to appoint you the sole managing conservator of your daughter, correct?" Mrs. Smith responded, "Yes." The trial court ruled, "[B]ased on the evidence . . . presented so far . . . for now no visitation will be granted" to Mr. Smith.C. Discussion

The trial court was in the best position to observe the demeanor and personality of Mrs. Smith, the sole witness to testify. The trial court took judicial notice of the record before it. The evidence showed Mr. Smith physically abused Mrs. Smith and, through their minor child, threatened her. The trial court ruled based on the evidence before it. We conclude that the trial court's decision to grant sole managing conservatorship to Mrs. Smith was not without reference to any guiding rules or principles and was not arbitrary or unreasonable. On this record, we cannot conclude that the appointment was not in the best interest of the child. See Tex. Fam. Code Ann. 153.002 (Vernon 2002), 153.004 (Vernon Supp. 2004-05). We overrule the second issue presented.

IV. Child Support

In his third issue, Mr. Smith asserts that the child support amount ordered is unjust because he is unemployed and in prison until August 19, 2004. He argues that the amount is too high. Mrs. Smith responds generally that the support ordered is within the statutory presumption for child support based on minimum wage.

A. The Law

We review a trial court's order on child support under an abuse of discretion standard. In re H.S.N., 69 S.W.3d at 833. We will not reverse the trial court's judgment absent an abuse of discretion. Id. A trial court abuses its discretion only when it has acted in an unreasonable or arbitrary manner, or when it acts without reference to any guiding principle. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We may not reverse for abuse of discretion merely because we disagree with a decision of the trial court. Id. at 242. In reviewing a trial court's exercise of discretion, legal and factual sufficiency of the evidence are not independent grounds of error but are merely factors to be assessed in determining if the trial court abused its discretion. Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App. Houston [14th Dist.] 1996, no writ). In determining whether the trial court abused its discretion, we view the evidence in the light most favorable to the trial court's action, indulging every presumption in favor of the judgment. Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex. App. Corpus Christi 2002, no pet.). If some probative and substantive evidence supports the trial court's findings, the trial court did not abuse its discretion. Id.

The court may order either or both parents to support a child in the manner specified by the order. Tex. Fam. Code Ann. 154.001(a) (Vernon 2002). The amount of a periodic child support payment established by the child support guidelines in effect at the time of a hearing is presumed to be reasonable; an order of support conforming to those guidelines is presumed to be in the best interest of the child. Tex. Fam. Code Ann. 154.122(a) (Vernon 2002). The court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts (1) the presumption that application of the guidelines is in the best interest of the child, and (2) justifies a variance from the guidelines. Tex. Fam. Code Ann. 154.123(a) (Vernon 2002). In the absence of evidence of the wage and salary income of a party, the court shall presume that the party has wages or salary equal to the federal minimum wage for a 40-hour week. Tex. Fam. Code Ann. 154.068 (Vernon 2002). There is no legal presumption that an inmate has no assets; incarceration alone does not rebut the minimum wage presumption. In re A.P., 46 S.W.3d 347, 350 (Tex. App. Corpus Christi 2001, no pet.).

If findings of fact or conclusions of law are neither filed nor requested, the judgment of the trial court implies all necessary findings of fact to support it. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). When a reporter's record is brought forward, the legal and factual sufficiency of the implied findings may be challenged on appeal. Id. at 84. However, issues raised for an appellate court's review "dependent on the state of the evidence cannot be reviewed absent a complete record." See In re A.P., 46 S.W.3d at 350.

B. The Record

At the hearing, Mrs. Smith requested monthly child support in the amount of $142.38 to commence on September 1, 2003. She rejected retroactive child support. The trial court took judicial notice of the record before it. The judgment reflects child support ordered commensurate with Mrs. Smith's request. Mr. Smith does not argue that the amount ordered is in excess of the minimum wage guideline computation; rather, he argues that the amount is too high. Mr. Smith did not request findings of fact or conclusions of law.

C. Discussion

The following presumptions are operative: (1) the absence of findings of fact or conclusions of law implies all necessary findings of fact to support the judgment, Heine, 835 S.W.2d at 83; (2) the amount of a periodic child support payment is reasonable and in the best interest of the child, Tex. Fam. Code Ann. 154.122(a) (Vernon 2002); and (3) absent evidence of his earned income, Mr. Smith has earned income equal to the federal minimum wage for a standard work week. See Tex. Fam. Code Ann. 154.068 (Vernon 2002). Mr. Smith s imprisonment does not rebut the minimum wage presumption. See In re A.P., 46 S.W.3d at 350. We note that the trial court took judicial notice of the record before it. Whether the trial court's record and the appellate record are the same is not established. Even so, we have viewed the record evidence in the light most favorable to the trial court's action, indulging every presumption in favor of the judgment. Wahid, 83 S.W.3d at 253. We are mindful that the absence of findings of fact or conclusions of law implies all necessary findings of fact to support the judgment. See Heine, 835 S.W.2d at 83. We cannot conclude that the trial court, in setting child support, acted without reference to any guiding rules or principles or acted arbitrarily or unreasonably. Thus, we conclude the trial court did not abuse its discretion. We overrule the third issue presented.

V. Property Division

In his fourth issue, Mr. Smith generally complains that the trial court erred in the division of the community estate. He argues that the distribution of community property divests him of his sole and separate property, in particular (1) the 1995 Mazda, (2) the 1999 Sonata, (3) his ring and necklace, (4) tapes and CDs, (5) photographs, and (6) his mother's ring and necklace. Mrs. Smith counters that the decree awards Mr. Smith the separate property requested, and the vehicle awarded to Mrs. Smith was properly distributed as community property.

A. The Law

We review the trial court's division of property in a divorce action for an abuse of discretion. Handley v. Handley, 122 S.W.3d 904, 907 (Tex. App. Corpus Christi 2003, no pet.). A trial court has wide discretion in making a just and right division. Id. A trial court abuses its discretion when it divides property on values that were not in evidence. Id. Further, a trial court's division of property that is manifestly unjust is an abuse of discretion. Id.

Property possessed by either spouse during or on the dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. 3.003(a) (Vernon 1998). To overcome this presumption, a party claiming certain property as separate property must establish the separate character of the property by clear and convincing evidence. Tex. Fam. Code Ann. 3.003(b) (Vernon 1998). We resolve any doubt as to the character of property in favor of the community estate. Akin v. Akin, 649 S.W.2d 700, 703 (Tex. App. Fort Worth 1983, writ ref'd n.r.e.). The values of individual items "are evidentiary to the ultimate issue of whether the trial court divided the properties in a just and right manner." Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App. Houston [1st Dist.] 1992, no writ). When a mischaracterization has more than a minimal impact upon the trial court's division, we must remand the case to the trial court for a just and right division based upon the correct characterization of the property. McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex. App. Houston [1st Dist.] 1995, writ denied).

The Texas Family Code requires the trial court in a divorce decree to divide "the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Tex. Fam. Code Ann. 7.001 (Vernon 1998). The trial court may consider various factors in making a just and right division including (1) spouses' capacities and abilities, (2) benefits which the party not at fault would have derived from the continuation of the marriage, (3) business opportunities, (4) relative physical conditions, (5) relative financial conditions and obligations, (6) disparity of ages, (7) size of separate estates, (8) the nature of the property, and (9) disparity of earning capacity. Handley, 122 S.W.3d at 907-08. The value of community assets is generally determined at the date of divorce. Id. at 908.

B. The Record

Mrs. Smith testified that the parties married on or about July 19, 1999, and ceased living together as spouses on or about December 2, 2001. She testified that the 1995 Mazda was purchased during the marriage. She further testified she would return to Mr. Smith his mother's gold ring, the computer, two cellular phones, and the stereo system. She requested division of the estate accordingly. The trial court awarded the property accordingly. The judgment memorializes the trial court's pronouncement.

C. Discussion

The record does not establish that the trial court mischaracterized property. The decree awards Mr. Smith his mother's gold signet ring. He presents no trial court error for review as to the ring. As to the award to Mrs. Smith of the 1995 Mazda, evidence establishes that it was part of the community estate. Tex. Fam. Code Ann. 3.003(b) (Vernon 1998). As to the remaining items, we resolve any doubt as to the character of property in favor of the community estate. See Akin, 649 S.W.2d at 703. Because Mr. Smith did not request findings of fact or conclusions of law, the judgment implies all necessary findings of fact to support it. See Heine, 835 S.W.2d at 83. Because the trial court did not issue a finding about the value of the property, we are unable to conclude that the trial court erred in awarding property in the possession of Mrs. Smith to her, even if that unitemized property includes the property Mr. Smith complains of on appeal. On this record, we cannot say whether the trial court properly or improperly divested either party of their separate property. //

Mindful of the appropriate deferential abuse-of-discretion standard and presumptions, we conclude that, on this record, the trial court did not divide the estate in an arbitrary or unreasonable manner and did not act without reference to guiding rules and principles. We overrule the fourth issue presented.

VI. Community Debts

In his fifth issue, Mr. Smith asserts that the trial court erred in the distribution of the community debts, arguing that "Mrs. Smith is responsible for debts from June 2002 [,] Jan. 2003. (i.e. cell phones, gas . . . )." // After Mrs. Smith testified, the trial court concluded that the parties had no community debts. The trial court ordered that any debts after the date of the parties' separation be paid by the party incurring them. The recitation in the decree reflects the trial court's ruling.

Appellate "rules place the burden on litigants to identify with sufficient specificity the grounds for a ruling they seek." See In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003); see also Tex. R. App. P. 33.1(a)(1)(A). A litigant's status as an inmate does not alter that burden. In re Z.L.T., 124 S.W.3d at 166. In this case, Mr. Smith has presented no arguable error for review. See Tex. R. App. P. 38.1(e), (g). We overrule the fifth issue presented.

VII. Denial of Appointment of Counsel and Opportunity to Attend Trial

In his sixth issue, Mr. Smith asserts that he was improperly denied appointment of an attorney ad litem, a bench warrant, and a telephone conference for purposes of the final hearing. Mrs. Smith counters that he waived error.

Mr. Smith filed motions for appointment of counsel and for a bench warrant to allow him to attend the final hearing. The record does not reflect that the trial court considered or ruled on appellant's application. Thus, Mr. Smith did not secure a ruling on his motions before the final hearing was convened.

A. Bench Warrant

Under Rule 33.1(a)(2) of the Texas Rules of Appellate Procedure, in order to present a complaint for appellate review, the record must reflect that the trial court "(A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule ... and the complaining party objected to the refusal." See Tex. R. App. P. 33.1(a)(2). In this case, the trial court proceeded to final hearing without ruling expressly on Mr. Smith's request for a bench warrant. Consistent with the language of Rule 33.1(a)(2), an implicit ruling may be sufficient to present an issue for appellate review. See In re Z.L.T., 124 S.W.3d at 165. By proceeding to trial without issuing the bench warrant, it is clear that the trial court implicitly denied Mr. Smith's request. See id. Therefore, we review the ruling for abuse of discretion. Id.

It is well-established that litigants cannot be denied access to the courts simply because they are inmates. In re Z.L.T., 124 S.W.3d at 165. However, an inmate does not have an absolute right to appear in person in every court proceeding. Id. Instead, the inmate's right of access to the courts must be weighed against the protection of our correctional system's integrity. Id. Texas courts of appeals have recognized a variety of factors that trial courts should consider when deciding whether to grant an inmate's request for a bench warrant. See id. These factors include: (1) the cost and inconvenience of transporting the prisoner to the courtroom; (2) the security risk the prisoner presents to the court and public; (3) whether the prisoner's claims are substantial; (4) whether the matter's resolution can reasonably be delayed until the prisoner's release; (5) whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means; (6) whether the prisoner's presence is important in judging his demeanor and credibility; (7) whether the trial is to the court or a jury; and (8) the prisoner's probability of success on the merits. Id. at 165-66. The central issue is the trial court's responsibility to independently inquire into relevant facts not provided by the moving party. Id. at 166. A trial court has no duty to go beyond the bench warrant request and independently inquire into the necessity of an inmate's appearance, regardless of the content of the request. See id. Since a prisoner has no absolute right to be present in a civil action, it follows that the prisoner requesting a bench warrant must justify the need for his presence. See id.

B. The Record

In his first motion for bench warrant, Mr. Smith stated he desired to appear to (1) contest the original petition, (2) present testimony about the child's best interests regarding modification of the parent-child relationship and child custody, (3) assist counsel in his defense, and (4) testify concerning the child's future. In his second motion for bench warrant, Mr. Smith asserted "[t]his suit cannot be fairly made without Respondent being at the hearing to testify in his own behalf and to present evidence, cross-examine witnesses, and generally defend his interests in this suit." In his filed "Affidavit of Respondent's Testimony," Mr. Smith stated the following: (1) he never intentionally exposed the child to any influence that would endanger the physical, mental or emotional well being of the child; (2) he loves and cares for his only child and wishes to be involved in the care and upbringing of the child; (3) the child's best interest requires removal from her present surroundings and placement in the State's care until Mr. Smith s release from prison in August 2004, or placement with paternal grandparents in Harris County, Texas; and (4) there are no community debts and property.

C. Discussion

The final hearing convened on August 1, 2003. Mr. Smith was set for release from prison in August 2004. Mindful that the trial court took judicial notice of the file, we conclude that, in implicitly denying the motion for bench trial, the trial court could have considered Mr. Smith's "affidavit," determined the "plain vanilla" character of the divorce, and determined that the SAPCR did not mandate his attendance at the final hearing because his testimony would be cumulative. Even assuming, however, that the trial court did not consider the "affidavit," Mr. Smith had the burden to establish his right to relief. See In re Z.L.T., 124 S.W.3d at 166. Because a prisoner has no absolute right to be present in a civil action, it follows that the prisoner requesting a bench warrant must justify the need for his presence. Id. Because Mr. Smith failed to make the required showing and the trial court was not required, on its own, to seek out the necessary information, we conclude that the trial court did not abuse its discretion by implicitly denying the request for a bench warrant.

D. Counsel

By proceeding to trial without appointing an attorney ad litem to represent Mr. Smith, the trial court implicitly denied Mr. Smith's request. See In re Z.L.T., 124 S.W.3d at 165. Thus, we review the ruling for abuse of discretion. Id.

Mr. Smith filed two motions for appointment of an attorney ad litem. As grounds in both motions, he cited section 107.012 of the family code. See Tex. Fam. Code 107.012 (Vernon Supp. 2004-05). The section, however, pertains to mandatory appointment of an attorney ad litem in a suit filed by a governmental entity requesting termination of the parent-child relationship or conservatorship of the child. Id. The section is inapplicable to a suit to dissolve a marriage that contains a SAPCR. See Tex. Fam. Code 6.001 et seq. (Vernon Supp. 2004-05). Accordingly, we conclude that the trial court's implicit denial of Mr. Smith's motion for appointment of counsel was not an abuse of discretion. We overrule the sixth issue presented.VIII. Conclusion

Having overruled all Mr. Smith's issues, we affirm.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and

filed this the 26th day of May, 2005.