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C.C. v. L.C.

Court of Appeals of Texas, Second District, Fort Worth

July 3, 2019

C.C., Appellant
v.
L.C., Appellee

          On Appeal from the 325th District Court Tarrant County, Texas Trial Court No. 325-609938-16

          Before Pittman, Bassel, and Womack, JJ.

          MEMORANDUM OPINION

          Dabney Bassel Justice.

         In the divorce action below, the trial court appointed Appellee L.C. (Mother) and Appellant C.C. (Father) as joint managing conservators of their two children and gave Mother the right to exercise specific parenting decisions, including the exclusive right to determine the children's primary residence. Father argues on appeal that an act of violence committed by Mother against him disqualifies her from being one of the children's joint managing conservators and from even being given access to or unsupervised visits with the children. There is no dispute the act occurred. Instead, our question is a legal one that turns on whether a provision of the family code deprives the trial court of the discretion to appoint Mother as a joint managing conservator because she committed this single act. We hold that it does not. We affirm the judgment of the trial court.

         I. Factual and procedural background

         Father described Mother's parenting skills and his relationship with her as once being a nine out of ten. Before the climactic event that ended the marriage, Father never raised an issue with Mother's parenting.

         But the once-good marriage began to fall apart. Several stresses caused Mother's and Father's relationship to deteriorate: Father's work on the night shift, the time he spent while at home working on his music production business, the care that Father needed during a prolonged illness, Mother's responsibility for all the childcare and household duties, and Father's alleged use of marijuana in the home. Mother also suspected Father of infidelity.

         The incident that was the primary focus of the bench trial and is the pivot point of this appeal began with Mother's decision to go without Father to visit her family in Mississippi and to take the children with her. Shortly after she arrived for the visit, another family member convinced her to return home to work on her marriage. She returned home but left the children in Mississippi. Father's trial counsel suggested that Mother timed her early morning return to the family home as an attempt to determine whether Father was being unfaithful.

         Mother's return began a day of conflict. The conflict focused on Father's cell phone. Mother insisted that the phone contained evidence of his contact with another woman, but Father attempted to frustrate her ability to look for what she believed was incriminating. The day progressed with Mother and Father hiding the phone from each other and removing, reinstalling, and then disabling the app that allegedly contained the communications that Mother wanted to see.

         Mother claimed that Father bruised her arms while they argued. Father denied that he did.

         It is uncontroverted that Mother introduced a gun into the argument. The following account came in response to the question directed to Mother, "So at some point you came out with a gun, right?" Mother's response was that she decided to leave the house and went into the couple's bedroom to dress. While dressing, she

saw the gun and . . . got the gun and . . . thought, well, if I -- maybe if I go in the room[, ] then maybe he'll -- he'll take me serious that I need to see the phone so I can know what to do with my future. Because he's basically -- this time I have actually proof that he's doing this to me[, ] and he's manipulating me. Because he's also saying to me during this time, ["]Don't you think maybe you are just being insecure?["] So he's basically putting it on me that what I saw wasn't real. [Emphasis added.]

         Holding the gun, Mother walked into the room where Father was and asked him to give her his phone. Mother and Father walked through the house with Mother carrying the gun "down to [her] side." Father claimed at trial that Mother pointed the gun at him, but Mother denied doing so.

         Pointed or not, the inevitable occurred when a gun is introduced into a quarrel. Father grabbed for the gun. It went off. Father was shot through the leg, and Mother was grazed in the arm. This ended any hope of reconciliation.

         Mother was arrested on a felony charge of aggravated assault with a deadly weapon but was released from jail the next day after posting bond. She eventually pleaded guilty to one misdemeanor count of deadly conduct and was placed on probation.

         Father filed for divorce shortly after the shooting. A year stretched between the filing and the bench trial.

         During that period, numerous conflicts arose: (1) Father obtained a protective order that Mother claimed he used to keep her from the family house and to push her and the children to the edge of homelessness; (2) Father sought a writ to obtain the return of the children; (3) Mother claimed that Father attempted to alienate the children's affections from her and frustrated her attempts to maintain contact with them; (4) Mother claimed that Father had failed to comply with court orders to provide her funds, and Father claimed that Mother's actions forced him into such dire financial straits that he had to decide whether to pay Mother or to provide for the children; and (5) the parties engaged each other in hearings on temporary orders, hearings on motions to modify temporary orders, and a motion for contempt.

         Specifically focusing on what the parents told the trial court about their relationship with the children, Father and Mother could agree on little at the bench trial. After being released from the hospital and filing for divorce, Father sought a writ of possession and entered into a rule 11 agreement to obtain the return of the children from Mississippi. As a result of the contested temporary orders hearing, the trial court appointed Father as temporary sole managing conservator of the children and gave Mother supervised visitation. Mother then sought to modify the temporary orders by claiming that Father was not abiding by them, and the trial court removed the supervision provision from Mother's visitation with the children.

         The trial court heard each party's side of the story about how they had treated the children and each other during the pendency of the divorce. Mother claimed that Father had frustrated her phone access to and physical visitations with the children; Father offered justifications for what had occurred. Father accused Mother of not helping with the children's financial needs. She charged him with not paying required spousal support and other monies that he was ordered to pay; he claimed that he lacked the ability to do so because of the expenses he bore to take care of the children. Father attacked Mother for not visiting the children; Mother claimed that Father's failure to make the payments hampered her ability to travel to visit the children. Each parent accused the other of being the greater offender in failing to abide by or take advantage of the trial court's orders and challenged whether the other would abide by future orders that the trial court might enter.

         Both parents asked to be the children's primary caregiver and challenged the other's parenting abilities and commitment.

         Father described his devotion to and history of care of the children after the shooting incident. Mother contested his depiction based on his work schedule. The testimony noted financial difficulties Father was experiencing.

         Father claimed that though once a good parent, Mother had become uninvolved in the children's lives and had not been supportive of them. She charged that Father had "tampered" with her relationship with the children and that his actions were part of an ongoing effort to alienate the children from her. Mother offered an example of not being provided pictures of the children.

         At the time of the bench trial in January 2018, Mother was living in Atlanta with her income coming from part-time employment in a library and a YouTube channel. But Mother also emphasized that her situation had improved and that she was now able to care for the children's financial needs. The trial court wanted to know whether Mother was planning to return to the local area. Mother testified that she had moved out of state because she lacked a local support system. But Mother promised that she would return if that was what she needed to do to take care of her children:

I have never been in any trouble before, so I had to go where I could, you know, have some -- I don't have any family here. He does but I don't. So it made it extremely hard for me. So I can come back. I won't have a support system here, though. So I'm stronger now. So, yeah, I can give thought to it. I can apply for jobs here and see if I can do something here instead of there. My support system is there, but I'll do whatever I need to do as it pertains to my children.

         After hearing of how Father was shot and the various conflicts between the parties, the trial court expressed its concern about the parenting situation that existed. The trial court also stated, "I don't like the distance between the parties. I don't want the children growing up without both their parents, so I'm going to have to think long and hard about that." The trial court ultimately signed a decree that appointed both Father and Mother as joint managing conservators of the two children. The decree also allocated the powers of the conservatorship in various ways, giving Mother the exclusive right to determine their primary residence. Many of the parenting rights and support obligations allocated between Mother and Father in the decree, including that right, were conditioned on Mother's return to Tarrant County by June 1, 2018.

         A dispute later arose whether Mother had returned to Tarrant County by the June 1 deadline, and she filed a petition for a writ of habeas corpus to obtain possession of the children when Father refused to deliver them to her. The trial court conducted a hearing on the petition, orally granted it, and subsequently entered a written order requiring Father to deliver the children to Mother. One of Father's issues in this appeal challenges the trial court's determination that Mother had returned to Tarrant County by the deadline established by the trial court.

         But the central focus of this appeal is the various findings of fact and conclusions of law that relate to the allocation of parenting decisions between Father and Mother as joint managing conservators. Father focuses on the following findings:

5. It is in the best interest of the children that [Father] and [Mother] be appointed joint managing conservators of the children.
8. [Mother] does not have a history or pattern of committing family violence or physical abuse during the two years preceding the date of filing of this suit or during the pendency of this suit.
9. It is in the best interest of the children that [Mother] be appointed the managing conservator who has the exclusive right to designate the primary residence of the children.
10. It is in the best interest of the children that [Mother] be appointed the managing conservator who has the exclusive right to consent to medical, dental, and surgical treatment involving invasive procedures for the children.
11. It is in the best interest of the children that [Mother] be appointed the managing conservator who has the exclusive right to consent to psychological and psychiatric treatment of the children.
12. It is in the best interest of the children that [Mother] be appointed the managing conservator who has the exclusive right to make decisions concerning the children's education.
13. It is in the best interest of the children that [Mother] be appointed the managing conservator who has the exclusive right to designate the primary doctor, dentist, orthodontist, and other such care providers for the children.

         He also challenges the following conclusions of law:

5. [Mother and Father] should be named joint managing conservators of [the children].
6. Appointing [Mother] as a joint managing conservator does not violate [s]ection 153.004 of the Texas Family Code.

         II. The trial court's discretion to appoint as a joint managing conservator a parent who has committed an act of violence or abuse

         Texas law presumes that both parents should be in their children's lives, and the provisions of the family code embody that presumption. But the family code withdraws that presumption when there is evidence of a history or pattern of violence or abuse within the family. Courts have struggled to interpret the provisions that govern how abuse or violence within a family impacts joint managing conservatorship, and we will inventory this multi-decade raft of divergent opinions. But the fundamental interpretive problem that we must resolve is whether to read a specific provision of the family code to mean that the single incident in this case constitutes a "history or pattern" of abuse or violence that disables the trial court from exercising the discretion to appoint Mother as a joint managing conservator and to vest her with other powers of managing conservatorship. We hold that a single incident does not mandate a finding of a history of abuse.

         A. Standard of Review

         The guiding light in making determinations of custody is the best interests of the children.[1] The trial court is vested with broad discretion in making a custody determination, though that discretion ends at the point when a trial court fails to properly analyze or apply the law.

         Further, in applying the abuse-of-discretion standard, "legal and factual insufficiency are not independent grounds for asserting error but are merely relevant factors in assessing whether a trial court abused its discretion." In re M.L., No. 02-15-00258-CV, 2016 WL 3655190, at *3 (Tex. App.-Fort Worth July 7, 2016, no pet.) (mem. op.). "Thus, in applying the abuse[-]of[-]discretion standard, we use a two- pronged analysis: whether the trial court had sufficient evidence upon which to exercise its discretion and whether the trial court erred in applying its discretion." Id.

         Much of the work in this opinion, however, involves statutory construction. That task involves a question of law, and we apply a de novo standard of review. Colo. Cty. v. Staff, 510 S.W.3d 435, 444 (Tex. 2017).

         B. Applicable Family Code Provisions

         1. The family code presumes that parents should be appointed joint managing conservators, but that presumption is removed upon the finding of a history of family violence.

         Barring findings that the appointment would not be in the best interest of the child, the family code provides that both parents "shall" be appointed joint managing conservators. Tex. Fam. Code Ann. § 153.131(a). That provision begins with a phrase making it subject to section 153.004, and that section addresses how the presence of a history of domestic violence alters the mandate to appoint parents as joint managing conservators.[2] And after providing that both parents shall be appointed joint managing conservators unless it is not in the children's best interest, section 153.131 then states that there 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." Id. § 153.131(b). But a finding of "a history of family violence" removes that presumption. Id.

         2. Section 153.004 of the family code instructs the trial court how to integrate evidence of violence or abuse into its decisions about conservatorship, visitation, and access.

         Section 153.004 gives trial courts specific direction in determining how abuse or violence impacts various conservatorship decisions. Id. § 153.004. In places, it instructs the trial court to consider evidence of specific types of conduct in making its decisions and in others, it prohibits actions if evidence is presented that meets certain standards. Compare id. § 153.004(a), with id. § 153.004(b). Some provisions of the section direct the trial court to consider isolated incidents of conduct, while others direct the trial court to make its decisions based on whether a history or pattern of conduct exists. Compare id. § 153.004(b), (d-1), (e), with id. § 153.004(c). The section is also not consistent in its description of the conduct that impacts the trial court's decisions, with various sections defining the conduct that the trial court must consider in divergent terms. Compare id. § 153.004(a), and id. § 153.004(b), with id. § 153.004(d-1), (e). Because a part of our analysis revolves around the construction of the section as a whole, we will summarize the various determinations of conservatorship and access by a parent that the section governs and the various standards that the section instructs the trial court to use in making those determinations when there is evidence of abuse or violence.

         a. A trial court may appoint a parent as a joint managing conservator when there is evidence of the intentional use of abusive force in the two years preceding the suit but must consider evidence of that act in making its determination.

         To determine whether a person may be appointed as sole managing conservator or as a joint managing conservator,

the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party's spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.

Id. § 153.004(a) (emphasis added).

         b. A trial court may not appoint both parents as joint managing conservators when presented with credible evidence of a history or pattern of physical abuse by one parent toward another.

         The next subsection contains a provision in play in this appeal that prohibits the appointment of a parent as a joint managing conservator "if credible evidence is presented of a history or pattern of past or present . . . physical . . . abuse by one parent directed against the other parent [or] a spouse ." Id. § 153.004(b).

         c. A trial court may appoint a parent who has a history or pattern of physical abuse directed against another parent as the sole managing conservator or as the conservator who has the exclusive right to determine the child's primary residence.

         Though credible evidence of a history or pattern of abuse is a bar to the appointment of joint managing conservators, the subsection containing that bar makes a history or pattern of physical abuse only a rebuttable presumption against the appointment of the offending parent as the sole managing conservator or as the conservator who has the exclusive right to determine the child's primary residence:

It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present . . . physical . . . abuse by that parent directed against the other parent [or] a spouse . . . .

Id.

         d. In deciding issues of possessory conservatorship, the trial court is not to consider a history or pattern but only the commission of family violence.

         Section 153.004 next provides guidance in how the trial court should consider family violence in deciding issues of possessory conservatorship: "The court shall consider the commission of family violence . . . in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator." Id. § 153.004(c).

         e. A trial court should generally deny access to a child by a parent with a history or pattern of family violence, but section 153.004 also provides a means for the trial court to permit that access even when a history or pattern of abuse is shown.

         Next, section 153.004 instructs how family violence should impact the ...


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