C.W. v. B.W.

C.W., Appellant v. B.W., Appellee

No. 02-19-00270-CV

Court of Appeals Second Appellate District of Texas at Fort Worth

August 6, 2020

On Appeal from the 360th District Court Tarrant County, Texas

Trial Court No. 360-651763-18

Before Sudderth, C.J.; Gabriel and Bassel, JJ.

Memorandum Opinion by Justice Bassel

Justice Gabriel concurs without opinion.

MEMORANDUM OPINION

Pro se appellant C.W. (Father) appeals portions of the trial court's final decree of divorce relating to the two minor children of Father and B.W. (Mother). In three issues, Father argues that the trial court abused its discretion by (1) ordering that Father shall have no possession of and access to the children at this time, (2) naming Father possessory conservator rather than joint managing conservator of the children, and (3) changing the children's last names from Father's last name to Mother's last name. At trial, Mother testified that she and Father separated over ten years earlier, that Father was incarcerated in Oklahoma for the rape of a child, and that Father has not been a part of the children's lives.

The crux of Father's arguments on appeal is his contention that the trial court could not consider his criminal conviction because it was more than two years prior to Mother's filing suit and because the offense did not involve one of his own children or a child in his household. We disagree. Under Section 153.004(c) of the Texas Family Code, the trial court was required to consider Father's conviction when determining whether to deny, restrict, or limit his possession of the children at issue. And under Section 153.004(b) of the Texas Family Code, for purposes of deciding conservatorship, the trial court was permitted to consider Father's conviction when determining whether he has a history or pattern of past or present sexual abuse directed against a child. Further, although we may have reached a different result regarding Mother's request to change the children's last names, we nonethelessconclude that Mother's testimony provided evidence of substantive and probative character that supports each of the trial court's decisions, which were reasonable. Thus, the trial court did not abuse its discretion, and we affirm the trial court's judgment.

I. Background

Mother filed an "Original Petition for Divorce and Original Petition to Terminate Parent-Child Relationship" in November 2018. After Father filed an answer, Mother filed a "First Amended Petition for Divorce," dropping her request to terminate the parent-child relationship between Father and their two minor children; Mother requested that she be appointed sole managing conservator and that Father be denied possession of or access to the children because of Father's criminal conviction in Oklahoma for the death or serious injury of a child. Mother further requested that the trial court change her and the children's last names. Mother also requested a permanent injunction against Father.

The case was tried to the bench on May 20, 2019. Although Father received notice of the trial, he did not appear in person or through an attorney. Mother was the only witness who testified at the trial. After the trial, the trial court granted the divorce, appointed Mother as the children's sole managing conservator, appointed Father as the possessory conservator, and ordered that Father shall have no possession of or access to the children at this time. The trial court also grantedMother's requests to change her and the children's last names and entered a permanent injunction against the Father. This appeal followed.

II. Standard of Review

The trial court is vested with broad discretion in making decisions on custody, control, possession, and visitation, and we review such decisions for an abuse of discretion. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); C.C. v. L.C., No. 02-18-00425-CV, 2019 WL 2865294, at *4 (Tex. App.—Fort Worth July 3, 2019, no pet.) (mem. op.); In re W.M., 172 S.W.3d 718, 724 (Tex. App.—Fort Worth 2005, no pet.). We also review a trial court's ruling on a request to change the name of a child for an abuse of discretion. Werthwein v. Workman, 546 S.W.3d 749, 755 (Tex. App.—Houston [1st Dist.] 2018, no pet.); see also In re T.G.-S.L., No. 02-12-00391-CV, 2013 WL 43738, at *2 (Tex. App.—Fort Worth Jan. 4, 2013, no pet.) (mem. op.).

A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Werthwein, 546 S.W.3d at 755. An abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision. 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.) (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh'g)).

It is for the factfinder to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. Id. (citing Chavez v. Chavez, 148 S.W.3d 449,457 (Tex. App.—El Paso 2004, no pet.), and In re R.W., 129 S.W.3d 732, 742 (Tex. App.—Fort Worth 2004, pet. denied)). Legal and factual sufficiency are not independent grounds of error in this context, but they are relevant factors in deciding whether the trial court abused its discretion. Werthwein, 546 S.W.3d at 755 (addressing name change); M.L., 2016 WL 3655190, at *3 (addressing conservatorship); K.T. v. M.T., No. 02-14-00044-CV, 2015 WL 4910097, at *3 (Tex. App.—Fort Worth Aug. 13, 2015, no pet.) (mem. op.) (addressing possession and access); T.G.-S.L., 2013 WL 43738, at *3 (addressing name change and citing W.M., 172 S.W.3d at 725); In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied) (op. on reh'g) (addressing conservatorship). 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. C.C., 2019 WL 2865294, at *5; Werthwein, 546 S.W.3d at 755. The traditional sufficiency review is involved in answering the first question and whether the trial court made a reasonable decision in answering the second. K.T., 2015 WL 4910097, at *3.¹

III. The Trial Court Did Not Abuse Its Discretion by Appointing FatherPossessory Conservator or by Restricting Father's Possession of andAccess to the Children.

In his first issue, Father contends that the trial court abused its discretion by ordering that Father shall not have any possession of or access to the children. In Father's third issue, he contends that the trial court abused its discretion by appointing Mother as the children's sole managing conservator and Father as the children's possessory conservator rather than appointing both parents joint managing conservators. Because Father blends his arguments in support of these issues, we will address them together.²

A. The best interest of the child is the primary consideration when determining conservatorship and possession of and access to a child.

The best interest of the child shall always be the primary consideration of the court when determining issues of conservatorship and possession of and access to a child. See Tex. Fam. Code Ann. § 153.002; C.C., 2019 WL 2865294, at *4 n.1. The trial court has wide latitude in determining the best interests of a child. See Gillespie, 644 S.W.2d at 451; see also Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (listing nonexhaustive factors that court may use to determine best interest). The best-interest determination does not require proof of any set of factors or limit proof to any specific factors. M.L., 2016 WL 3655190, at *3 (citing In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.)).

Under Texas law, 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 unless the trial court finds that there is a history of family violence. See Tex. Fam. Code Ann. § 153.131(b). The Texas Family Code also provides that "[s]ubject to the prohibition in Section 153.004," a party shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators unless the trial court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development. See id. § 153.131(a). To overcome the statutory parental presumption, the evidence must support the logical inference that somespecific, identifiable behavior or conduct of the parent, demonstrated by specific acts or omissions, will probably cause significant impairment to the child's physical or emotional development if the court appoints the parent managing conservator. M.L., 2016 WL 3655190, at *4 (citing Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990)).

Section 153.004(b) of the Texas Family Code then expressly prohibits a trial court from naming a party as a joint managing conservator "if credible evidence is presented of a history or pattern of past or present . . . sexual abuse by one parent directed against . . . a child." Tex. Fam. Code Ann. § 153.004(b). Additionally, when determining conservatorship, a trial court may take into consideration how well the child's best interests would be served with a managing conservator who would be unable to fulfill many of the responsibilities of being a managing conservator because of his incarceration. Crowley v. Hinson-Crowley, No. 03-02-00501-CV, 2003 WL 22860821, at *4 (Tex. App.—Austin Dec. 4, 2003, no pet.) (mem. op.).

As to possession and access, the Texas Family Code also creates a rebuttable presumption that the Standard Possession Order is in the best interest of a child. See Tex. Fam. Code Ann. § 153.252. When, however, sufficient evidence rebuts this presumption, the trial...