Gerges v. Gerges

601 S.W.3d 46

Michael Mikhael GERGES, Appellant,

v.Jennifer Elaine GERGES, Appellee.

No. 08-19-00006-CV

Court of Appeals of Texas, El Paso.

February 26, 2020

ATTORNEY FOR APPELLANT, Tiffany Yates, Cordell & Cordell, P.C., 420 Throckmorton St Ste 650, Fort Worth, TX 76102-3723.

ATTORNEY FOR APPELLEE, Alison Porterfield, Schneider Law Firm, P.C., 5001 S. Cooper St., Ste. 221, Arlington, TX 76017-5993.

Before Alley, C.J., Rodriguez, and Palafox, JJ.

OPINION

JEFF ALLEY, Chief Justice

This is an appeal from a final divorce decree, following a bench trial, in which the trial court granted a divorce between Appellant Michael Mikhael Gerges (Husband) and Appellee, Jennifer Elaine Gerges (Wife).¹ The case raises a number of issues, including whether the trial court erred in: (1) partially rejecting Husband's request for an Expanded Standard Possession Order, (2) finding that there was a potential risk of international abduction and issuing international abduction prevention measures, (3) imposing several restrictions on Husband's right to possession of the children, (4) granting the divorce on the basis of adultery, and (5) making an award of attorney's fees to Wife.

We agree with Husband that there was insufficient evidence to support the trial court's finding of a potential risk of international abduction, and we therefore conclude that the trial court abused its discretion in issuing a permanent injunction from removing the children beyond the borders of the United States. Accordingly, we dissolve that portion of the trial court's judgment. Finding no abuse of discretion with respect to any of the other issues raised by Husband, we affirm the trial court's judgment in all other respects.

I. BACKGROUND

The parties were married on June 9, 2010, and have two children from the marriage, J.G. and L.G., born in 2011 and 2015. The parents separated in May of 2016. Wife filed an Original Petition for Divorce, alleging, among other things, that the marriage had become "insupportable because of discord or conflict of personalities," and that Husband had committed "adultery." Husband answered and filed his own counterpetition for divorce. Husband and Wife resolved their property disputes through a mediated settlement agreement. They could not, however, resolve the issues regarding their children. While both parties agreed that they should be named joint managing conservators of their children, each wanted to be named the primary conservator, with the exclusive right to designate the children's primary residence. They tried that and related issues to the trial court.

The trial court entered its Final Decree of Divorce on September 11, 2018. At Husband's request, the trial court entered Findings of Fact and Conclusions of Law. The Decree and findings address five issues germane to this appeal.

A. The Possession Order

The Decree named the parties as joint managing conservators of their two children and gave Wife the exclusive right to designate the children's primary residence. As explained in more detail below, the trial court partially rejected Husband's timely election for an expanded possession schedule and entered a standard possession order for weekend visitation and for Father's Day. However, Husband was given expanded possession of the children on Thursdays of each week during the regular school term, beginning at the time the children's school was dismissed from school and ending at the time the children's school resumed on Fridays.

B. The International Abduction Prevention Measures

In her amended petition, Wife asked the trial court "to determine whether there is a risk of international abduction of the children by Respondent and to take such measures as are necessary to protect the children." The trial court found that credible evidence had been presented that there was a "potential risk of ... international abduction" of the children, and it therefore permanently enjoined both parents from removing the children "beyond the borders of the United States of America or its territories."² The trial court also found that it was in the best interest of the children to give Wife the exclusive right to "apply for, renew, and maintain possession of the passports for the children."

C. Additional Injunctions and Other Restrictions

At Wife's request, the trial court also ordered both parties to give each other 14-days-notice of any intended overnight or out-of-state travel with the children, together with information regarding details of the planned travel, including the location and contact information for where the children would be staying. In addition, at Wife's request, the trial court ordered both parents to allow the other parent to have electronic communication with the children at 7:00 PM each day during their periods of non-possession, finding that it was in the best interest of the children to allow both parents to have "daily electronic/telephonic communication with the children when not in possession of the children."

The trial court also made findings that Husband had a "history" of recording Wife or the faculty or staff of the children's school, and that Husband had a history of leaving a child alone and unsupervised in a motor vehicle. Based on these findings, the trial court permanently enjoined both parties from leaving any child alone and unsupervised in a motor vehicle, and from "[m]aking audio or video recordings of [Wife] or the faculty and staff of the children's school[.]"

D. The Adultery Finding

The decree reflects that the trial court granted the parties' divorce "on the grounds of insupportability and adultery by [Husband]," and in its findings, the trial court expressly found that Husband was the parent of a child who had been born to another woman during his marriage to Wife.

E. Attorney's Fees

In addition, the trial court granted Wife's request for attorney's fees, and ordered Husband to reimburse Wife for her "reasonable and necessary attorney's fees" in the amount of $10,000.00.

II. ISSUES ON APPEAL

In six issues, Husband contends that the trial court abused its discretion by: (1) partially rejecting his election of the Expanded Standard Possession Order, (2) imposing travel restrictions based on the risk of international abduction, (3) granting the divorce on the basis of adultery, (4) granting other unnecessary and unreasonable permanent injunctions, (5) placing unreasonable restrictions on his right to possession of the children, and (6) awarding attorney's fees to Wife. We first consider Husband's issues relating to possession issues, and thereafter consider his remaining arguments in a somewhat different order.

III. APPLICABLE LAW AND STANDARD OF REVIEW IN SAPCR PROCEEDINGS

In determining issues of conservatorship, possession, and access to a child in Suits Affecting the Parent-Child Relationship (SAPCR), the court's primary consideration is the best interest of the child. TEX.FAM.CODE ANN § 153.002. In so deciding, courts generally look to a non-exhaustive list of considerations for determining a child's best interest promulgated by the Texas Supreme Court, commonly referred to as the " Holley factors." See Bates v. Tesar , 81 S.W.3d 411, 433-35 (Tex.App.--El Paso 2002, no pet.), citing Holley v. Adams , 544 S.W.2d 367, 371-72 (Tex. 1976). Included in these factors are: (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. See id.

In addition, Section 153.001 of the Family Code identifies three relevant public policy concerns when making virtually any child custody decision: "(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage." TEX.FAM.CODE ANN. § 153.001(a)(1)-(3) ; see also Lenz v. Lenz , 79 S.W.3d 10, 14 (Tex. 2002).

Trial courts have wide discretion when deciding matters of custody, control, possession, support, or visitation, and we review such matters for an abuse of discretion. In Interest of J.H. III , 538 S.W.3d 121, 123 (Tex.App.--El Paso 2017, no pet.) ; see generally In re Doe 2 , 19 S.W.3d 278, 281 (Tex. 2000) (recognizing that a trial court has broad discretion in determining the best interest of a child in family law matters).

To determine whether a trial court has abused its discretion in a SAPCR proceeding, we engage in a two-pronged inquiry: (1) did the trial court have sufficient information upon which to exercise its discretion; and (2) did the trial court err in its application of discretion. In re T.M.P. , 417 S.W.3d 557, 562-63 (Tex.App.--El Paso 2013, no pet.) ; see also In Interest of C.M.V. , 479 S.W.3d 352, 358 (Tex.App.--El Paso 2015, no pet.). We consider challenges to the legal and factual sufficiency as relevant factors in determining whether the trial court had sufficient information upon which to exercise its discretion under the first prong of our analysis, rather than as independent grounds of error. See Norris v. Norris , 56 S.W.3d 333, 338 (Tex.App.--El Paso 2001, no pet.) ; In Interest of C.M.V. , 479 S.W.3d at 358. In determining whether there is legally sufficient evidence, we consider the evidence in the light most favorable to the finding if a reasonable fact finder...