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Waters v. Waters

Court of Appeals of Texas, Fourth District, San Antonio

December 13, 2017

Cody A. WATERS, Appellant
Beth T. WATERS, Appellee

         From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-09528 Honorable John D. Gabriel, Jr., Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice, Marialyn Barnard, Justice, Luz Elena D. Chapa, Justice.


          Sandee Bryan Marion, Chief Justice.

         Cody A. Waters appeals a final decree of divorce appointing Beth T. Waters as the sole managing conservator of their children B.W. and T.W. Cody asserts the trial court erred by: (1) refusing to rule on his motions; (2) appointing Beth as sole managing conservator; (3) allowing the children's counselor to determine whether Cody should have any possession of and access to the children; and (4) failing to act in the children's best interest. We reverse the portion of the final decree of divorce entitled "Possession Order" and remand the cause to the trial court for further clarification. We affirm the remainder of the final decree of divorce.


         Beth filed a petition for divorce on June 6, 2016, and the trial court called the case for trial on September 26, 2016. At that time, Cody was serving a fifteen year prison sentence for aggravated assault with a deadly weapon and was awaiting trial on other charges. Cody represented himself at trial pro se.[1]

         Cody announced he had numerous motions pending and specifically referenced a motion for discovery filed with the court on July 20, 2016. Beth's attorney responded that Cody did not serve her with any discovery until the week before trial. The trial court ruled trial would proceed, instructing Cody the trial court's ruling could be held if issues arose "that you probably need some discovery on."

         At the time of trial, B.W. and T.W. were nine years old. Beth testified she and Cody separated in December of 2013 due to a long history of abuse. In December of 2013, Cody choked Beth's son from a previous marriage. Beth also recalled an instance in which Cody threw her onto the floor, kicked her, placed a gun to her head, and threatened to kill her. B.W. and T.W., who were three years old at the time, were standing in the doorway and observed the abuse. They also were present and observed Cody choking Beth's son. When asked how many times B.W. and T.W. had witnessed family violence, Beth responded, "I can't even count. I don't know. It was - it was a lot." The following documents were then introduced into evidence: (1) a series of text messages exchanged between Cody and Beth between January of 2014 and April or May of 2014, in which Cody threatens Beth; (2) photographs Beth testified showed her closet after Cody destroyed it in a rage and a dining room chair Cody destroyed by throwing it at her; (3) a May 18, 2016 letter, which Cody wrote to Beth while he was in jail, admitting that he was abusive and violent; and (4) another letter Cody wrote while in jail addressed to Beth's son in which Cody admitted "put[ting] his hands on" Beth's son.

         After Cody was convicted of aggravated assault with a deadly weapon and sentenced to fifteen years, B.W. and T.W. visited with Cody at the Bexar County jail on two occasions. Beth testified she allowed the visits so the children could visualize where Cody was and that he was okay. After the first visit, T.W. cried in the shower, and both children were emotionally affected by the visit. After the second visit, both children cried for an hour and began fighting with each other. Based on their reactions, Beth testified it was not in their best interest to continue visiting with Cody at the jail.

         The children were initially speaking with Cody on the telephone on a daily basis; however, the calls were reduced to twice a week because the children were having difficulty processing the situation. Beth testified the children's behavior improved when their communication with Cody decreased, and the children eventually started running and hiding from the telephone when Cody called. Beth explained the children did not understand things Cody told them or how to process what he was saying. Cody wrote the children a letter stating evil forces led to his conviction but later wrote the children a letter stating God allowed him to be convicted so he could lead the other prisoners. Beth testified Cody wrote one letter "in the first person as God and signed it, Love God." On March 23, 2016, Cody wrote T.W. a letter telling her they would "be together as a family again before you know it." Beth testified she was asking the trial court to deny Cody access to the children because it was not in their best interest.

         Beth admitted she worked with Cody in allowing him access to the children after their separation and before his incarceration; however, she explained she felt like she did not have a choice. Although Beth tried to file for a protective order in 2014 to restrict Cody's access to supervised visits, she was told she did not have sufficient evidence of the abuse in the form of photographs. Beth later explained she sought the protective order because Cody had just shot some people and she was afraid. Beth testified she would not be able to afford the cost of travel to allow the children to visit Cody after he is transferred to the penitentiary. She also cannot afford to pay for Cody to continue to have telephone calls with the children. Beth testified she has the children in counseling several times a week.

         On cross-examination, Cody asked Beth why she never called the police or requested a protective order. Beth responded that she was afraid. Beth also testified she was seeking to be appointed sole managing conservator because Cody had made bad decisions that led to his incarceration. Beth admitted Cody was allowed weekly visits with the children before his incarceration; however, she testified she later witnessed him jerking the children around by their arms. She also testified Cody bit B.W. a few weeks before he went to jail. When Beth asked B.W. about the clear bite marks on her arm, B.W. said Cody bit her to discipline her for reaching across the table.

         Cody testified regarding his love for the children. Cody stated he visited the children's school and had discussions with their teachers. Cody requested that he be appointed as a joint managing conservator. Certificates of classes Cody had attended while in jail were admitted into evidence, including family violence prevention classes, anger management classes, and psychoanalysis therapy.

         On cross-examination, Cody testified he bit B.W. because she used bad manners in reaching over his plate at the dinner table. Cody stated he did not intend to bite her as hard as he did. With regard to putting his hands on Beth's son, Cody testified the situation was chaotic, and he was suffering from PTSD. Cody denied he was violent toward Beth. Cody admitted he was convicted of aggravated assault with a deadly weapon and was awaiting trial on other charges; however, he stated there is a good chance the other charges will be dropped.

         Based on the testimony presented, the trial court signed a final decree of divorce appointing Beth as sole managing conservator and Cody as possessory conservator.[2] The decree ordered the children to continue counseling and ordered both Beth and Cody to comply with the counselor's requests. The decree ordered that any possession and access between Cody and the children would be determined by the children's counselor.

         Failure to ...

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