In Re: J. P. D. F.--Appeal from 273rd District Court of Shelby County

NO. 12-05-00343-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

APPEAL FROM THE 273RD

IN RE: J.P.D.F., JUDICIAL DISTRICT COURT OF

A CHILD

SHELBY COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Anna Franklin appeals the trial court s final decree of divorce. On appeal, Anna presents one issue challenging certain orders relating to the child of the marriage. We affirm.

Background

Anna and John Franklin were married on May 20, 1995 and are the parents of one child, J.P.D.F., born prematurely on December 7, 2001. On January 4, 2005, John filed an amended petition for divorce, requesting that both parents be appointed joint managing conservators. John also requested that he be granted the exclusive right to designate the primary residence of the child and that Anna be ordered to pay child support. In her counter petition for divorce, Anna also requested that both parents be appointed joint managing conservators. Anna asked that she be granted the exclusive right to designate the primary residence of the child and that the residence should be restricted to the State of Texas. Anna requested that John be ordered to pay child support and spousal maintenance. Further, Anna made claims on the community estate for reimbursement and economic contribution.

The parties agreed to mediation and settled some issues. Anna and John agreed that J.P.D.F. s residence would be restricted to Travis County and contiguous counties or Shelby County and contiguous counties, or within one hundred miles of the residence of the parent who did not have the right to determine the child s domicile. Regarding the child, Anna and John agreed that the only issue would be J.P.D.F. s primary residence.

After a final trial in July 2005, the trial court filed a final decree of divorce that, among other orders, appointed Anna and John as joint managing conservators of J.P.D.F. The trial court ordered that, due to J.P.D.F. s young age and his best interest, a modified possession order applied to all periods of possession on or after the date of the final decree of divorce until August 14, 2007. In the modified possession order, Anna and John each had the right to possession of the child on alternate two week periods with birthdays and holidays divided between the parents. During the time of the modified possession order, John was granted the exclusive right to designate J.P.D.F. s primary residence within Shelby County, Texas and contiguous counties or within one hundred miles of Anna s residence. Beginning August 15, 2007, a standard possession order would take effect. At that time, Anna would have the exclusive right to designate J.P.D.F. s primary residence within Travis County, Texas and contiguous counties or within one hundred miles of John s residence. This appeal followed.

Report of Social Study

As part of her argument, Anna quoted from sections of a report prepared by Cindy Hutchins and attached that report as an exhibit to her brief. The trial court ordered Hutchins to prepare a social study of J.P.D.F. s circumstances and condition and of Anna s and John s homes. According to the clerk s and reporter s records, Hutchins s report was not filed with the trial court or introduced as evidence in the trial. Texas Rule of Appellate Procedure states that the appellate record consists of the clerk s record and, if necessary to the appeal, the reporter s record. Tex. R. App. P. 34.1. An appellate court cannot consider an item that is not a part of the record on appeal. Kaman v. State, 923 S.W.2d 129, 132 (Tex. App. Houston [1st Dist.] 1996, no pet.). Further, we cannot consider documents attached to briefs unless they were before the trial court and are part of the record. Allen v. Auto. Ins. Co., 892 S.W.2d 198, 200 (Tex. App. Houston [14th Dist.] 1994, no writ). Because Hutchins s report was not a part of the record, we cannot consider it on appeal.

Right to Establish Primary Residence of Child

As part of her sole issue, Anna contends that the trial court abused its discretion by appointing John as the joint managing conservator with the exclusive right to designate J.P.D.F. s primary residence and that this provision was not in the child s best interest. John disagrees.

Applicable Law

In determining conservatorship and possession, the best interest of the child shall be the primary consideration. Tex. Fam. Code Ann. 153.002 (Vernon 2002). The trial court has wide latitude in determining the best interest of a child, and the decision of the trial court will be reversed only when it appears from the record as a whole that the court has abused its discretion. In re Marriage of Stein, 153 S.W.3d 485, 488 (Tex. App. Amarillo 2004, no pet.). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In other words, the test is whether the trial court s actions were arbitrary or unreasonable. Id. Under this standard of review, legal and factual sufficiency of the evidence, although not independent grounds for asserting error, are relevant factors in assessing whether the trial court abused its discretion. Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex. App. Dallas 1999, no pet.). When there is some evidence of a substantive and probative character to support the trial court s decision, no abuse of discretion occurs. In re Marriage of Jeffries, 144 S.W.3d 636, 639 (Tex. App. Texarkana 2004, no pet).

In rendering an order appointing joint managing conservators, the trial court shall designate the conservator who has the exclusive right to determine the primary residence of the child (the primary conservator). Tex. Fam. Code Ann. 153.134(b) (Vernon Supp. 2006). The trial court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining the terms and conditions of conservatorship and possession of the child. Tex. Fam. Code Ann. 153.003 (Vernon 2002). Although Holley v. Adams involved termination of parental rights, at least two courts have determined that the Holley factors are appropriate in determining the best interest of the child in suits affecting the parent-child relationship. See In re C.R.O., 96 S.W.3d 442, 451 (Tex. App. Amarillo 2002, pet. denied); Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 168 (Tex. App. Houston [14th Dist.] 1995, no writ).

The Holley factors include (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is not exhaustive, but simply indicates considerations that have been or could be pertinent. Id. However, the best interest of the child does not require proof of any unique set of factors nor limit proof to any specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App. Fort Worth 2001, no pet.). The Holley test focuses on the best interest of the child, not the parent s best interest. Dupree v. Texas Dep t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App. Dallas 1995, no writ).

Analysis

We review the trial court s order granting John the exclusive right to designate J.P.D.F. s primary residence until August 14, 2007 under an abuse of discretion standard and using the Holley factors to determine the child s best interest. We note that the parents had lived in Austin since before J.P.D.F. was born and that the child was hospitalized for more than two months after his birth. In 2004, John and Anna agreed to move to Center because John got a position as the high school assistant principal in the Center Independent School District. At the time of trial, John was living in Center and stated that he would be the assistant principal of the middle school next year. Anna still lived in Austin in the family home and was employed by a public broadcasting television station in Austin.

Desires of the child

At the time of trial, J.P.D.F. was three and one-half years old and there was no evidence regarding his desires. However, one witness testified that her gut feeling was that the child wanted to be with his mother.

The emotional and physical needs of the child now and in the future

Anna testified that J.P.D.F. had some lagging motor skills on one side of his body. She further stated that he had been interviewed for the Head Start program in Austin, but was no longer a participant in the Easter Seals program. According to Anna, J.P.D.F. liked to garden, help her around the house, play with blocks and balls, and do artwork. John stated that he and J.P.D.F. go fishing, read, play games, and play with balls. Cindy Hutchins, the director of the Shelby County Children s Advocacy Center, was a licensed professional counselor and was ordered to conduct a social study, visiting both John and Anna. No one mentioned to Hutchins that J.P.D.F. had a learning disability and, from her observations, he appeared to be a normal, sharp, bright boy. Although Anna s brief stated that J.P.D.F. was a fragile child who required special treatment, there was no evidence in the record of his fragility or need for special medical or educational treatment. Anna s brief also stated that J.P.D.F. s special needs could not be met in Center, but there was no evidence to support that contention.

The emotional and physical danger to the child now and in the future

There was some testimony regarding Anna s postpartum depression or psychosis shortly after J.P.D.F. s birth and her two psychiatric hospitalizations. However, John never believed that Anna posed a danger to J.P.D.F., and Hutchins did not base her opinions on Anna s postpartum depression or psychosis. John testified that, in their last exchange of possession of J.P.D.F., Anna believed that J.P.D.F. was not well enough to travel. Both Anna and John testified that the problems with the exchange escalated until at least one attorney and the police became involved. John Manual Gonzales, a television and film producer who had worked with Anna, stated that, during a movie shoot in October 2004, J.P.D.F. was running outside in the parking lot while Anna filmed. Marie Claire Fleming, the director of the facility where Anna filmed the movie, also witnessed J.P.D.F. running around the parking lot one night. Anna admitted that, during the filming in October 2004, her schedule was more hectic and unstructured than normal. Michael Stewart Harris, a friend of both Anna and John, stated that, although there was a suggestion that John left J.P.D.F. unsupervised at Anna s house, he denied that he discovered J.P.D.F. wandering in the front yard while John was asleep. Harris stated that he was at Anna s house and that, while John slept, he babysat the child.

The parental abilities of the parents and the stability of the home

John stated that, prior to their marriage, he and Anna agreed that one of them, probably Anna, would stay home with their child. John believed that he should be the primary conservator because he had a very stable lifestyle with a structured day and night routine. After J.P.D.F. was born, John visited him every day and, during Christmas vacation, he visited the child several times a day. John had a master of education in education administration. He began the program in the summer of 2001 and completed it in May 2003.

Anna stated that she should be the primary conservator because she had been J.P.D.F. s primary caregiver his entire life. Anna testified that John did not have a lot of time to spend with J.P.D.F. because he was in graduate school and that he visited the child once a day in the hospital. She stated that she had a routine for J.P.D.F. She admitted that she took J.P.D.F. to daycare while their house was being remodeled or she was unpacking and that the latest he stayed was 10:00 p.m. Anna also admitted that, from February 2004 to August 2004, the daycare records showed numerous days when J.P.D.F. stayed at the daycare from ten to thirteen hours. Anna stated that John never complained about a lack of structure during the marriage. Anna admitted that she had some college, but never received a degree. Anna testified that she had been employed in the television and film industry since 1981. Hutchins stated that Anna told her she was not working at the present. John also stated that Anna did not work regularly a good deal of the time.

Hutchins concluded that John was the more stable parent, emotionally, vocationally, and financially. However, Hutchins did not have any evidence strong enough to warrant Anna losing the right to have J.P.D.F. live primarily with her. Hutchins visited Anna at the designated time, about 1:00 p.m. However, Anna was not ready for the social study. Hutchins stated that the house was beautiful and in order and the housekeeper informed her that Anna was in the shower and would be down later. Hutchins had to wait approximately thirty minutes before Anna presented herself for the interview. Hutchins stated that Anna and John had an agreement that Anna was to be the primary caretaker of J.P.D.F. That was part of her reason for stating that it was in J.P.D.F. s best interest that he remain primarily with Anna.

Richard Cronshey, a person who had taught with John, believed that John would be the better parent because he offered J.P.D.F. stability and a daily routine. However, he stated that both Anna and John were good parents. Michael Stewart Harris testified that he believed John would be the better parent until Anna took care of her problems. John Manual Gonzales stated that he did not believe Anna s house was the best place for J.P.D.F. because she did not offer a structured lifestyle. According to Gonzales, J.P.D.F. would run until he was exhausted and did not have set times to eat or for bed. Also, the child seemed to spend a majority of the time in daycare and Gonzales did not observe a very motherly relationship. Cynthia Rubin, a friend of Anna s and a perinatal nurse, testified that Anna was a wonderful loving and caring mother. Rubin testified that John was more high strung as a parent and was not as comfortable with a toddler.

The plans for the child

John stated that J.P.D.F. was enrolled at a Methodist church daycare and that, during the school year, J.P.D.F. generally accompanied him to school events after work. However, on football nights, John had obtained a babysitter for J.P.D.F. Later, John anticipated that J.P.D.F. would join him at those events. Anna stated that she had three scenarios for herself after the divorce. The first plan was to remain in her home, have a roommate, and continue working at the television station, but arranging it around J.P.D.F. s schedule. Anna s second plan was for her sister to move in with her and help out more. Her third scenario was to sell the house, but it was the last thing she wanted because it would disrupt J.P.D.F. s life the most.

The acts or omission of the parent that may indicate the existing parent-child relationship is not proper and any excuse for those acts or omissions

John stated that Anna became irrational during times of stress and described two incidents that occurred between Anna and his father after his mother died in August 2004. John stated that Anna s behavior was irrational and vehement towards his father, but admitted that he did not witness one incident. From mid-October 2004 to November 18, J.P.D.F. stayed with John in Center. John testified that, on November 18, he did not know Anna was in Texas or that she was going to pick up J.P.D.F. When he went to the day care to pick up J.P.D.F., he was told that Anna picked the child up at nine o clock that morning. John testified that he tried to call Anna and her mother many times and left multiple messages. According to John, Anna returned his telephone calls at 8:30 p.m., stating that she had taken J.P.D.F. to a pediatrician in Austin, that his arm was injured as if it had been wrenched out of place, that he had bite marks, and that she was concerned with his wellbeing. John admitted that J.P.D.F. was bitten at the daycare, but stated that the daycare had not recommended further medical attention. According to John, x-rays taken by the pediatrician showed no injury. He denied refusing to pay for any doctor s bill and stated that he was willing to pay any of J.P.D.F. s bills if he were sent an invoice from the doctor s office.

In December 2004, John was contacted by the Texas Department of Family and Protective Services (the Department ), informing him that he was under investigation for possible neglect of his son. John testified that the Department found no evidence of any neglect of J.P.D.F. while in his care. John stated that, although he was allowed to talk to J.P.D.F., he was not allowed to see his son until February 13, 2005. John stated that Anna wanted him to visit J.P.D.F. at Kid s Exchange, a supervised visitation facility. John did not believe that this was an appropriate setting for their visit because it would have been stressful for J.P.D.F. John stated that, after February 2004, he saw J.P.D.F. more frequently, including a visit lasting about a week in April.

John admitted that, from November 2004 until the mediation in April 2005, he paid the mortgage and most of the bills, but refused to send Anna cash because he did not know how she would spend it. John contended that he sent Anna a good bit of money and that Anna also charged on his father s credit card without permission. He admitted that, by not paying support, he was in violation of a temporary order obtained by Anna in Travis County. The evidence showed that the Travis County trial court ordered John to pay temporary child support in the amount of $1,200 per month and spousal support in the amount of $2,300 per month for a total of $3,500 per month. However, John s monthly salary was $2,265.13. John believed that Shelby County controlled the divorce case.

Regarding the incidents with John s father, Anna stated that she attempted to handle the situations calmly, but that John s father accused her and screamed at her. Afterwards, Anna testified that her relationship with John deteriorated. She stated that John was very controlling and manipulative. Prior to the November 18, 2004 incident, Anna had been in New York scouting for a location. On November 18, Anna traveled to Center and, after picking J.P.D.F. up from daycare and noting his condition, she took him to his pediatrician in Austin. Anna stated that J.P.D.F. s arm was horribly injured and that he was crying and complaining. Anna stated that she attempted to ascertain what had occurred, but could not. According to Anna, J.P.D.F. s pediatrician suggested that the child sustained a broken collarbone and performed x-rays. Anna admitted that there was no broken collarbone, but that there was an injury. Anna stated that the pediatrician referred her to a specialist and she scheduled an appointment. John s counsel noted that the pediatrician s records stated that no referral was necessary for a pediatric orthopedist and she was left a message. Anna claimed that John refused to pay for the specialist.

Anna abided by the Travis County temporary orders and admitted that, between November and February, John did not see the child. In Anna s opinion, if she allowed John to have possession of J.P.D.F. in those months, she would not have seen her son again because John was not abiding by the Travis County order. She stated that, between November 2004 and April 2005, John sent her very little money. In April 2005, they agreed on a visitation schedule through mediation. However, she complained that John signed up to be the assistant principal during summer school and was warehous[ing] J.P.D.F at daycare instead of spending time with him. She stated that John repeatedly turned down opportunities to spend time with J.P.D.F.

William Franklin was John s father and lived in Grand Cane, Louisiana. Franklin described two conflicts with Anna during the time of his wife s death. According to Franklin, Anna said he called her a liar and became loud and forceful. Because of her behavior, he did not believe that she should drive J.P.D.F. to Center and did not allow her to use his wife s van to do so. Franklin allowed Anna and John to use his credit card for minimal purchases. He revoked his permission after he discovered that Anna had withdrawn $1,800 when he gave her permission to withdraw only $1,000. On another credit card, Franklin discovered approximately eighteen additional charges that neither he nor John made, including Anna s dental bill for $900. He never gave Anna permission to use that credit card. Prior to November 18, 2004, J.P.D.F. had been at Franklin s house. Franklin denied that the child s arm was hurting or that he showed any injuries.

Michael Stewart Harris stated that J.P.D.F. was either at the daycare, at the house, or with them while he and Anna worked on a film in October 2004. Most days, Harris took J.P.D.F. to daycare and picked him up and took him meals two or three times a day. One night, the daycare called at midnight and asked that the child be picked up. Harris testified that J.P.D.F. would stay at the daycare from before 10:30 a.m. until 11:00 p.m. In October 2004, Harris stated that he believed Anna was sleep deprived and stated that she fell asleep at inappropriate times. Because of her sleeping behavior, he had concerns regarding J.P.D.F. s safety and believed Anna s mental and/or emotional state was not healthy enough for her to take care of the child.

Sue Williams was employed at the Wee Learn Baptist daycare in Center and was familiar with Anna, John, and J.P.D.F. John enrolled J.P.D.F. in the daycare in September or October 2004. Before lunch one day, Anna picked up J.P.D.F. On that day, Williams stated that J.P.D.F. did not look injured, unkempt, or sick, and had been playing as usual. She did not notice whether he was holding his arm in a funny manner.

From the evidence above, the trial court could have found that John was a stable parent, both emotionally and financially, that he offered a stable home, that he seemed to meet J.P.D.F. s emotional and physical needs, and that he was not a danger to his child. The trial court could have found that John was not unreasonable to believe that the Shelby County case controlled his divorce and that the Travis County support orders were more than his monthly salary. The trial court could have found that, at that time, Anna was not as stable as John, emotionally or financially. Moreover, the trial court was in a better position to determine the best interest of the child because it faced the parties and witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent. Martinez v. Molinar, 953 S.W.2d 399, 403 (Tex. App. El Paso 1997, no writ). Therefore, we conclude that the trial court did not abuse its discretion in appointing John as the joint managing conservator with the exclusive right to designate J.P.D.F. s primary residence until August 14, 2007, and that this appointment was in the child s best interest. Accordingly, we overrule the portion of Anna s sole issue regarding designation of J.P.D.F. s primary residence.

Modified Possession Order

As part of her sole issue on appeal, Anna also argues that the trial court abused its discretion by ordering a modified possession order that changes possession of J.P.D.F. between the parties every two weeks and that this order was not in the child s best interest. John disagrees.

Applicable Law

In determining possession of and access to the child, the best interest of the child shall be the primary consideration. Tex. Fam. Code Ann. 153.002. The trial court has wide latitude in determining the best interest of a child, and the decision of the trial court will be reversed only when it appears from the record as a whole that the court has abused its discretion. In re Marriage of Stein, 153 S.W.3d at 488. The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Worford, 801 S.W.2d at 109.

Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators. Tex. Fam. Code Ann. 153.135 (Vernon 2002). 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 exclusive right to designate the primary residence of the child (the managing conservator). Tex. Fam. Code Ann. 153.137 (Vernon Supp. 2006). The trial court shall render an order that grants periods of possession of the child as similar as possible to those provided by the standard possession order if the standard order is unworkable or inappropriate. Tex. Fam. Code Ann. 153.253 (Vernon 2002). In ordering the terms of possession of a child under an order other than a standard possession order, the court shall be guided by the guidelines established by the standard possession order and may consider the age, developmental status, circumstances, needs, and best interest of the child, the circumstances of the managing conservator and of the parent named as a possessory conservator, and any other relevant factor. Tex. Fam. Code Ann. 153.256 (Vernon 2002).

Analysis

We note that the trial court stated that it made a complicated ruling because it was important for both parents to have significant time with the child while not completely sacrificing their careers. Moreover, the trial court, in its order, stated that it modified the possession order due to J.P.D.F. s young age. The alternating two week possessions ordered by the trial court would end August 14, 2007, the approximate date J.P.D.F. would begin kindergarten. Anna, as the managing conservator, was given more, not less, time with J.P.D.F. than that required in a standard possession order, the presumptive minimum. See Tex. Fam. Code Ann. 153.137. There was little evidence regarding the danger to J.P.D.F. of traveling between the parents every two weeks. John stated that, while it was not in J.P.D.F. s best interest to be on the road for six hours between Austin and Center, it likewise was not in his best interest to see his parents less frequently because of the distance between them.

Regarding the respective careers of the parents, John testified that, in the spring before trial, he made no attempts to find employment in the Austin or Travis County area. John stated that his remaining in Center was in J.P.D.F. s best interest because his son thrived there and that it was a good place to raise a child. Anna stated that it would be difficult to find a position in television or film production in Center rather than a large urban area. For career reasons, neither party wanted to move. The trial court was allowed to consider the child s age and development and the parents circumstances in ordering terms of possession that differed from the standard possession order. See Tex. Fam. Code Ann. 153.256. Considering the young age of the child and the trial court s concern that both parents see the child frequently, yet not sacrifice their careers, we conclude that the trial court did not abuse its discretion in ordering a modified possession order until August 14, 2007, and that the order was in the best interest of the child. Accordingly, we overrule the portion of Anna s sole issue regarding the modified possession order.

Disposition

The judgment of the trial court is affirmed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered September 29, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)