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Turrubiartes v. Olvera

Court of Appeals of Texas, First District

June 1, 2017

MARIA TURRUBIARTES, Appellant
v.
JOSE PABLO OLVERA, Appellee

         On Appeal from the 309th District Court Harris County, Texas Trial Court Case No. 2014-70680

          Panel consists of Justices Keyes, Bland, and Huddle.

          MEMORANDUM OPINION

          Jane Bland Justice

         This is an appeal from a dispute between divorcing parents over the managing conservatorship of their children. The trial court awarded sole managing conservatorship to the father and possessory conservatorship to the mother. The mother appeals, contending that the trial court erred by (1) departing from the presumption of joint managing conservatorship for both parents; (2) violating her equal protection rights; (3) violating the International Covenant on Civil and Political Rights by denying her equal access before the court; and (4) failing to issue findings of fact and conclusions of law.

         We abated the appeal and ordered the trial court to file findings of fact and conclusions of law. The trial court complied with our order, and the clerk has supplemented the record on appeal to include the trial court's findings and conclusions. We hold that some evidence supports the trial court's order naming the father as the managing conservator and the mother as a possessory conservator. We further hold that the mother has not demonstrated that the trial court violated her equal protection rights or denied her equal access before the court. We therefore affirm.

         Background

         Maria Turrubiartes and Jose Olvera have three children, who were born before Maria and Jose married in February 2013. The couple separated in October 2014, following an altercation between Maria and a next-door neighbor. The altercation related to Maria's friendship with her neighbor's husband and Jose's accusations of adultery made to the neighbor and Maria. Maria left with the three children.

          The trial court heard testimony from Maria and Jose in connection with determining the conservatorship of their children.

         Jose testified that, from the time of the separation until trial, Maria had refused to disclose to Jose the location of the children's residence. On one occasion, Maria's brother-in-law went to Jose's house and threatened to kill him or have him killed if he attempted to visit the children where Maria was living. Without informing Jose, Maria withdrew the children from the school they had been attending in Tomball. She then enrolled them in a different school in Magnolia. She refused to disclose to Jose the location of the children's new school. Maria also told the school that Jose was not allowed to take the children from school.

         Jose discovered where the children were enrolled in school about a month later. For the year before trial, Jose visited the children during their school lunchtimes twice a week, but he could not otherwise see the children because Maria refused to provide their address and had arranged that he could not take them from school. He also feared retaliation from her brother-in-law.

         Before Maria left with their children, Jose was the parent that assisted the children with their homework. Jose stated that he had taken the children to the doctor. Jose denied that he ever "laid hands on [Maria] during the marriage." Jose requested that he be appointed primary managing conservator because Maria drove the children without a driver's license and he was concerned about the children's safety.

         Maria testified that, since the separation, she and the three children have lived with her sister and brother-in-law. In contrast to Jose's testimony, Maria testified that she had not kept Jose from seeing the children, that he "has every right to enter the house, " and that their son "had been calling him." She could not recall a specific time that she had permitted Jose to see the children but stated that nothing was stopping him from visiting them. Maria requested "custody to be 50/50 because we're both parents." She stated that Jose had "never really taken care" of the children and denied that Jose had taken the children to the doctor.

         Maria denied that she had an affair with her neighbor. She testified that she left because Jose had burned her and the children's clothes and accused her of adultery. Maria is an undocumented immigrant and has lived in the United States since 2006. She drives without a driver's license. Maria has never been the subject of any deportation proceedings, nor has she been involved in any traffic accidents. She testified that her attorney has a report of domestic violence that she made in October 2014, but no report was introduced at trial. She did not testify as to any domestic violence before she and Jose separated. Maria planned to apply for legal status in the month following trial.

         Maria testified that she has the children in therapy in Montgomery County and did not inform Jose about it. Since the separation, Maria's nephew has helped the children with their homework. Maria denied that Jose used to help the children with their homework. Maria stated that Jose did "nothing" for the children.

         Relevant to this appeal, the trial court found:

• The wife of a male neighbor and Maria engaged in a dispute, subsequent to which Maria vacated her home with the children, without notice to Jose.
• Maria's brother-in-law threatened Jose's life if Jose came on the brother-in-law's property to see the children.
• After separating from Jose, Maria withdrew the children from their school and moved them to another school that would not ...

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