Julie Brock v. Byron O'Neal

Opinion issued June 24, 2010 In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00103-CV ——————————— Julie Brock, Appellant V. Byron O'Neal, Appellee On Appeal from the 312th District Court Harris County, Texas Trial Court Case No. 2007-58671 MEMORANDUM OPINION This is an appeal from a final order in a suit affecting the parent‑child relationship. Appellant Julie Brock brings four issues. She contends the order is void because a necessary party, her husband, was not served. She also contends that the trial court erred in naming appellee Byron O’Neal as a joint managing conservator because the trial court did not adjudicate O’Neal as the parent of the child as required by Family Code section 160.636(a). In her final two issues, Brock argues that the evidence is legally and factually insufficient to support the appointment of O’Neal as joint managing conservator with the exclusive right to designate the primary residence of the child. We affirm. Background At trial, Brock testified that O’Neal is the biological father of L.B., the child who is the subject of this suit. Brock prepared and signed a “verification of birth facts” when L.B. was born that listed O’Neal as the father. O’Neal testified that Brock has never denied he is L.B.’s biological father. O’Neal testified that he learned that he was L.B.’s father after a DNA test, which occurred shortly after L.B. was born. At the time of trial, O’Neal lived with his fiancée, Kimberly Elbert, and he did not have his own residence. At that time Brock was married, although she testified that she had plans to divorce her husband, from whom she had been separated since 2000. Brock’s husband has been convicted of a RICO offense for cocaine distribution. Brock testified at trial that her husband came to her house at least twice a month and visited his two children who live with her. Her husband has stayed overnight at her house infrequently since 2000. There was testimony from both Brock and O’Neal that Brock has no health insurance for L.B. Brock testified that after L.B. left the hospital, L.B.’s first pediatrician’s visit was one facilitated by O’Neal. O’Neal testified that he has been unable to apply for insurance for L.B. because he had not been adjudicated as her father. He has nonetheless paid for her pediatrician’s visits. The parties testified about a Rule 11 agreement they and the trial court signed, which was filed on October 22, 2007. See Tex. R. Civ. P. 11. Brock testified that before this agreement, O’Neal never offered to pay child support. Brock admitted that she violated a portion of the Rule 11 agreement that prohibited Brock or O’Neal from removing L.B. from Harris County or any contiguous county when she once took L.B. to Mississippi. There was also testimony concerning whether Brock complied with a requirement in the Rule 11 agreement that she and O’Neal communicate by e‑mail concerning specific details about L.B.’s care. Brock testified that she did not regularly send L.B.’s feeding and sleeping schedule to O’Neal. Brock explained that she did not provide this information on a regular basis because “everything pretty much stays the same with [L.B.].” O’Neal testified that Brock has not paid for half of L.B.’s medical expenses under the Rule 11 agreement, but admitted that he had not presented Brock with receipts and asked her to pay. There was also disputed testimony from Brock and O’Neal regarding whether O’Neal violated a portion of the Rule 11 agreement prohibiting him, when he has L.B., from “having a related adult with whom he has an intimate relationship to remain in the residence from 8PM to 8AM.” The trial court signed a November 7, 2008 order naming Brock and O’Neal as joint managing conservators. The order gave O’Neal the exclusive right to designate the primary residence of the child within Harris and Fort Bend Counties. The November 7, 2008 order did not adjudicate O’Neal as the biological father of L.B. On April 9, 2010, the trial court signed a nunc pro tunc order that adjudicated O’Neal as L.B.’s biological father. Analysis Alleged lack of service In her first issue, Brock claims that the trial court’s final order is void because a necessary party, Brock’s husband, was not served. The record, however, reflects that her husband was served with citation. Accordingly, we overrule the first issue. O’Neal’s standing to be named as joint managing conservator In her second issue, Brock claims that O’Neal lacked standing to be named as a joint managing conservator because the trial court did not adjudicate O’Neal as the parent of the child as required by Family Code section 160.636(a). “The general test for standing in Texas requires that there ‘(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.’” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (quoting Bd. of Water Eng’rs v. City of San Antonio, 283 S.W.2d 722, 724 (Tex. 1955)). In the particular context of an original suit affecting the parent-child relationship, a parent of the child has standing to file suit. See Tex. Fam. Code Ann. § 102.003(a)(1) (Vernon Supp. 2009). An order adjudicating O’Neal as the father is not necessary to establish his standing to file suit. O’Neal’s original petition alleged that he is the biological father of L.B. Brock did not deny that claim; in fact, she confirmed it in her trial testimony. Because O’Neal’s status as L.B.’s biological father was not a contested issue before the trial court, we hold there was an implied finding to this effect in the trial court’s November 7, 2008 order. We therefore conclude that O’Neal had standing, and we overrule the second issue. Sufficiency of the evidence In her third and fourth issues, Brock challenges the legal and factual sufficiency of the evidence to support appointing O’Neal as joint managing conservator with the exclusive right to designate the primary residence of the child. A rebuttable presumption exists that appointment of the parents of the child as joint managing conservators is in the best interest of the child. See Tex. Fam. Code Ann. § 153.131(b) (Vernon 2008). When, as here, the parents do not file a written agreed parenting plan, the trial court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child. See Tex. Fam. Code Ann. § 153.134(a) (Vernon Supp. 2009). The trial court must consider the following factors: (1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators; (2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest; (3) whether each parent can encourage and accept a positive relationship between the child and the other parent; (4) whether both parents participated in child rearing before the filing of the suit; (5) the geographical proximity of the parents’ residences; (6) if the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and (7) any other relevant factor. Id. One of the things the trial court must do in the final order is designate the conservator who has the exclusive right to determine the primary residence of the child. See Tex. Fam. Code Ann. § 153.134(b)(1) (Vernon Supp. 2009). In this case, there was a nonjury trial and no findings of fact were filed by the trial court. It is therefore implied that the trial court made all the necessary findings to support its final order. See Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). Because a reporter’s record has been filed as a part of the appellate record, the legal and factual sufficiency of the trial court’s implied findings may be challenged the same as a jury’s verdict or a trial court’s findings of fact. See id. In conducting a legal sufficiency, or “no evidence” review, we consider the evidence in the light most favorable to the trial court’s judgment, disregarding all evidence and inferences to the contrary unless a reasonable fact-finder could not do so. City of Keller v. Wilson, 168 S.W.3d 802, 810–11 (Tex. 2005). We do not disregard contrary evidence if (a) there is no favorable evidence, or (b) contrary evidence renders supporting evidence incompetent, or (c) contrary evidence conclusively establishes the opposite. Id. at 810–11. In determining whether the evidence was factually sufficient to support the trial court’s judgment, we consider all the evidence and set aside the findings only if we find that they are so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). 1. Legal sufficiency Brock argues on appeal that the evidence is legally insufficient to support appointing O’Neal as joint managing conservator with the exclusive right to designate the primary residence of the child because O’Neal lives with his fiancée, Kimberly Elbert; O’Neal is financially unable to pay his own housing expenses, food, and utilities; O’Neal testified he had no previous experience with children; and there was no testimony at trial from Elbert. Finally, Brock argues that L.B. should remain with her as L.B.’s mother so they can bond, citing In re Rodriguez, 940 S.W.2d 265 (Tex. App.—San Antonio 1997, pet. denied). Brock does not address the evidence that supports the trial court’s implied finding, which includes the felony conviction of Brock’s husband, Brock not obtaining health insurance for L.B., or Brock not taking L.B. to regular doctor’s visits until O’Neal intervened. In her appellate brief, Brock does not reference any evidence that O’Neal has not provided for L.B., either financially, physically, or emotionally. In addition, we note that Brock could have, but did not, call Elbert to testify at trial. Finally, Brock’s reliance on Rodriguez is misplaced. Rodriguez involved the trial court’s decision to award managing conservatorship of a child to nonparent caretakers, instead of the child’s mother. Rodriguez, 940 S.W.2d at 266. Because O’Neal is L.B.’s father, there is a rebuttable presumption that appointing both Brock and O’Neal is in the best interest of the child. See Tex. Fam. Code Ann. § 153.131(b) (Vernon 2008). O’Neal, therefore, had no burden to prove that Brock was an “unfit mother,” unlike the situation in Rodriguez. 940 S.W.2d at 271 (holding that nonparent must rebut statutory presumption that child’s best interest is served by naming parent or parents as managing conservators). We overrule Brock’s third issue challenging the legal sufficiency of the evidence. 2. Factual sufficiency Brock argues on appeal that the evidence is factually insufficient to support appointing O’Neal as joint managing conservator with the exclusive right to designate the primary residence of the child because this appointment will separate L.B. from her half‑siblings. Brock cites three cases on appeal: In re T.N.F., 205 S.W.3d 625, 633 (Tex. App.—Waco 2006, pet. denied) (citing expert testimony that keeping sibling groups together was important factor in considering emotional needs of child, as that is factor under Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976)); Warchol v. Warchol, 853 S.W.2d 165, 167–68 (Tex. App.—Beaumont 1993, no writ) (holding no evidence existed to support father’s motion to modify custody); O. v. P., 560 S.W.2d 122, 127 (Tex. Civ. App.—Fort Worth 1977, no writ) (custody of two or more children of marriage should not be divided, except for clear and convincing reasons). This Court has held, however, that the presumption against separating siblings does not apply to half‑siblings. See Pizzitola v. Pizzitola, 748 S.W.2d 568, 569–70 (Tex. App.—Houston [1st Dist.] 1988, no writ). Considering all the evidence, including the evidence we previously discussed under Brock’s third issue, we cannot find that the trial court’s implied findings are so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we overrule Brock’s fourth issue challenging the factual sufficiency of the evidence. Conclusion We affirm the trial court’s final order. Michael Massengale Justice Panel consists of Justices Jennings, Alcala, and Massengale.