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In re Marriage of Mitchell

Court of Appeals of Texas, Sixth District, Texarkana

May 31, 2019


          Date Submitted: May 30, 2019

          On Appeal from the 276th District Court Morris County, Texas Trial Court No. 26077

          Before Morriss, C.J., Burgess and Stevens, JJ.


          Scott E. Stevens Justice

         Holly Lynn Mitchell petitioned for divorce from her husband, Jeremy Guy Mitchell, and asked the trial court to appoint them both as joint managing conservators of her three children, Amber, Heather, and Claire.[1] Jeremy filed a cross-petition for divorce and requested that he be appointed sole managing conservator of their children "due to [Holly's] addiction to prescriptive medications" and alleged history of child neglect. Don Butler intervened to adjudicate his parentage of and conservatorship to the youngest child, Claire, who was born in March 2014. After adjudicating Butler as Claire's father, the trial court appointed Butler, Holly, and Jeremy as joint managing conservators of Claire, and designated Jeremy as the "non-parent joint managing conservator" with the exclusive right to establish Claire's primary residence. The trial court also ordered Butler to pay child support to Jeremy.

         On appeal, Butler argues that the trial court erred in appointing a nonparent as managing conservator because the record contains insufficient evidence that Butler's appointment would significantly impair Claire's physical health or emotional development. On the condition that his first argument is correct, Butler argues that the trial court erred in requiring him to pay child support to Jeremy.

         We find that Jeremy presented legally and factually sufficient evidence to show that, absent Jeremy's appointment, appointment of only the child's biological parents would significantly impair Claire's emotional development. We also find that the trial court did not abuse its discretion in appointing Jeremy joint managing conservator. Because of these findings, we overrule Butler's conditional argument and affirm the trial court's judgment.

         I. Factual Background

         At trial, Jeremy testified that he lived with Holly, Amber, Heather, and Claire until Holly left him in March or April 2017. Jeremy viewed himself as Claire's father and testified that Claire, who was four at the time of trial, had lived with him for all of her life, except for a four-month period when Claire lived with Holly after the separation. During that period, Holly was arrested in Claire's presence for possession of a controlled substance. Jeremy said that Holly abused prescription medication, had burned Claire on the hand with a cigarette, and was not mentally capable of caring for the girls. He testified that Holly had "court cases pending for drugs that she's been selling or that she's had found in her car" and had another pending charge for unlawful possession of a firearm she carried in her purse. Holly admitted she had hydrocodone and a weapon in her purse when arrested and testified that two of four criminal charges were still pending at the time of trial.

         Jeremy described his home and testified that it was in Claire's best interest to keep living with him, Amber, and Heather. He added that his parents, whom Claire had believed were her grandparents since birth, also lived with him and helped care for Claire. Jeremy's mother, Gina Cobb, mirrored Jeremy's testimony about Claire's best interest and added that Claire called Jeremy her father and called Butler by name. Cobb also testified that she owned the daycare that Claire attended and that she was happy there. According to Cobb, Claire acted as if she did not want to leave to see Butler.

         Despite Cobb's testimony, Jeremy agreed that Claire was bonded with Butler and that he did not know of anything Butler had done that would endanger her physically or emotionally. Even so, Holly testified that it was in Claire's best interest for Jeremy, not Butler, to be the joint managing conservator with the exclusive right to determine the child's primary residence. Holly testified that Jeremy has been Claire's father figure since birth even though he knew he was not the child's biological father. Butler also testified that he spoke with Jeremy a month after Claire was born and that Jeremy knew the child was not his at the time. Holly believed that it was not in Claire's best interest to separate with the family she had known since birth and that it would negatively impact the child if she had to live with Butler 200 miles away.

         Holly's testimony about her relationship with Butler helped clarify her best interest opinion. The evidence showed that Butler was still married to his wife of fourteen years, Cindy. According to Holly, she and Butler had a sexual relationship for years while they were both married, the relationship was still ongoing, and they had sex a few days before the trial. Holly said Butler had photos and video recordings of their sexual activities and her sexual activities with other men. Holly testified that Butler kept telling her that he would divorce Cindy and marry her. Holly's father, Jimmy Waits, said Butler told him he would divorce Cindy to be with Holly. According to Holly, Butler purchased an engagement ring for her and said he "would take [Claire] and get custody and hand her back to [Holly] because he was filing for divorce as soon as [the case was] over." Telephone conversations admitted into evidence supported Holly's testimony. Holly testified that Butler did not have a stable home life.

         Holly also testified that Butler was physically abusive toward her two times. One assault occurred in the summer of 2017 while the case was pending. According to Holly, Butler hit her in the face with a closed first. Photos of Holly after the assault were admitted into evidence. Holly claimed that she did not report the abuse to the police because she was scared that Butler would kill her. Holly admitted that her relationship with Butler affected her parenting. Even so, she testified that Butler had impregnated her again in 2017, but that she miscarried and had never told him about the pregnancy.

         Butler had an eighty-percent disability rating because of post-traumatic stress disorder (PTSD) and a concussion as a result of his time in the military. He believed himself cured and had not seen a doctor in three years. Several witnesses testified that Butler consumed alcohol, but Butler and Cindy claimed it was never to excess even though Holly had described him as drunk in a text message. Waits testified that Butler brought a 9mm weapon and a cooler full of hard liquor to his home during the last Easter celebration and opined that "anybody that walks in your home and is drinking as much hard liquor as [Butler] was" would have parenting issues. According to Waits, Holly said Butler knew that Claire was his child from conception but did not "man up." Waits noted that Butler and Holly text and talk constantly and that the calls interfered with her visitation with her children. Waits agreed that it was in Claire's best interests to live with Jeremy, not Butler, and that Jeremy should have the exclusive right to determine the child's primary residence.

         Butler testified that he worked in a supervisory position for BNSF Railroad, had been married to Cindy, a dispatcher for the Gatesville City Police Department, for fourteen years, and had two daughters from the marriage. According to Butler, he and Cindy did not have an open marriage, and he only slept with Holly and sent naked photos of himself to her during a period of separation and pending divorce from Cindy after a derogatory photo of Cindy having sex with other men appeared on the internet. After he reconciled with Cindy, Butler claimed he had not had sex with anyone else.

         Butler and Cindy testified that Holly told Butler that Claire was his child when she was pregnant. Butler paid her $1, 000.00, but said he "second guess[ed]" Holly because he knew she was married to Jeremy. Butler claimed that Holly denied his offer to pay Claire's medical expenses because the child was on Medicaid, but said he refused Holly's other requests for money for Claire's care because Holly would not relent to his requests for a DNA test and would not let him see the child. Butler said Jeremy should have known by December 2014 that Claire was not his child. Butler testified that he had previously tried to file papers to establish the child's parentage, but claimed the paperwork went missing from the clerk's office.

         When asked about his ongoing relationship with Holly, Butler classified it as purely platonic. When confronted with text messages and telephone records refuting the claim, Butler said he only told Holly he would marry her so he could be with Claire because Holly would restrict his access to the child if he did not pretend they were in a relationship. Butler claimed that he kept leading Holly on because she was mentally unstable and had threatened suicide. That said, Butler's father testified that Butler admitted to an ongoing sexual relationship with Holly and said Cindy was okay with their relationship even though she knew Butler and Holly had sex three days before trial.

         Cindy admitted that she knew Butler and Holly had some sort of relationship because Holly was the mother of Butler's child. But she denied knowledge of their sexual relationship after the reconciliation. Cindy testified that she did not have an open marriage and that it would hurt her if Butler and Holly were having sex and if he had purchased an engagement ring for Holly. Even so, she did not currently consider her marriage at risk.

         Although Butler first stated that he did not have concerns about Holly's ability to parent, he later claimed that both Holly and Jeremy were addicted to prescription medication. Though Holly was a computer tomography technologist at Good Shepherd Medical Center and had a four-bedroom home, Butler claimed she had no income and would not be a suitable parent. Butler also testified that he did not think Jeremy's home was suitable because "the living arrangements [were] a little tight." As a result, he wished for Claire to move to Gatesville to live with him.

         Butler testified that, even though the trial court's temporary orders did not provide for his possession of the child, Claire had spent nine months with him and visited his house several times. Cindy testified that she was willing to be responsible for Claire and had even watched her alone two or three times when Butler was unable to visit with the child. Butler and Cindy testified that their fourteen-year-old and eight-year-old daughters loved ...

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