Edaena Villarreal v. Reynaldo Villarreal

Affirmed as Modified and Memorandum Opinion filed November 23, 2005 Affirmed as Modified and Memorandum Opinion filed November 23, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00071-CV ____________ EDAENA VILLARREAL, Appellant V. REYNALDO VILLARREAL, Appellee On Appeal from the 300th District Court Brazoria County, Texas Trial Court Cause No. 18051*RH01 M E M O R A N D U M   O P I N I O N This is an appeal from a divorce between appellant Edaena Villarreal and appellee Reynaldo Villarreal. Edaena argues in four issues that the trial court erred (1) by appointing intervenors Reynaldo Villarreal Sr. and Estela Villarreal (Athe grandparents@) joint managing conservators with primary physical possession of Edaena and Reynaldo=s four children, (2) by overruling Edaena=s motion to dismiss the grandparents= petition in intervention, (3) by failing to render a judgment for unpaid temporary child support, and (4) by entering judgment on a lien in favor of the grandparents against Edaena and Reynaldo=s marital property. We modify the judgment to delete the paragraph that impressed a lien on the parties= property. We affirm the remainder of the judgment. Background Edaena and Reynaldo were married for approximately fourteen years. During their marriage, they had four children, three boys and one girl. The couple lived in Rosharon, Texas on a ten-acre tract of land that they owned. After they separated in 2001, Edaena filed for divorce. In May 2002, the trial court entered temporary orders for custody and child support. Reynaldo was awarded temporary primary physical possession of the oldest boy and was ordered to pay Edaena $450 per month in child support. Edaena was awarded temporary primary physical possession of the three younger children. After living with her sister, Edaena moved in with her boyfriend, Manuel Troncoso, and his daughter. Despite the temporary orders forbidding either parent to have an unrelated member of the opposite sex at his or her house between the hours of 10:00 p.m. and 8:00 a.m. when the children were present, Edaena and the three younger children lived with Troncoso for approximately one year. In May 2003, Edaena and the three children moved out of Troncoso=s home and into an apartment for the purpose of complying with the court=s temporary orders. The paternal grandparents intervened in the divorce action in May 2003. Both parties and the grandparents sought to be named the sole managing conservators of all four children. A bench trial was held over three days in June and October 2003. In the final decree of divorce, the trial court appointed Edaena, Reynaldo, and the grandparents as joint managing conservators of the children and awarded the grandparents primary physical possession of the children. Each parent was ordered to pay the grandparents $211.83 per month for child support. The trial court divided the marital property, awarding Reynaldo and Edaena five acres each of the land they owned. The trial court also entered judgment in favor of the grandparents on a mechanic=s and materialman=s lien in the amount of $44,197.32 on the entire ten-acre tract that Reynaldo and Edaena owned. Finally, the decree specifically discharged all obligations for temporary support that were imposed by the temporary orders. Standing In her second issue, Edaena argues the trial court erred in denying her motion to dismiss the grandparents= petition in intervention. The grandparents sought intervention under section 102.004 of the Texas Family Code, which allows standing for grandparents in child custody disputes under certain circumstances. Section 102.004(a) gives grandparents standing to file an original suit requesting managing conservatorship if the order is necessary because the child=s environment presents a serious question concerning the child=s physical health or welfare, or both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit. Tex. Fam. Code Ann. ' 102.004(a) (Vernon 2002). The text of section 102.004(b) of the Family Code in effect at the time the grandparents filed suit specifically provides that grandparents who have substantial past contact with the child may be granted leave to intervene in a suit affecting the parent-child relationship. Act of April 20, 1995, 74th Leg., R.S., ch. 20, ' 1, amended by Act of June 18, 1999, 76th Leg., R.S., ch. 1048, ' 2 & Act of June 18, 2005, 79th Leg., R.S., ch. 916, ' 3 (current version at Tex. Fam. Code Ann. ' 102.004(b) (Vernon Supp. 2005)). Edaena contends the trial court erred in failing to dismiss the intervention because the grandparents failed to show there was a significant question concerning the physical and emotional health of the children. The trial court denied Edaena=s motion to dismiss the intervention, finding that the grandparents had standing to intervene. Although the Family Code requires a showing of impairment of the children=s physical or emotional health for the grandparents to file an original suit affecting the parent-child relationship, at the time the grandparents filed their petition, intervenors in a suit affecting the parent-child relationship did not need to show standing sufficient to institute a suit in their own right. Therefore, at the time the grandparents filed their intervention, they did not have to show standing sufficient to institute a suit in their own right to intervene in a pending suit affecting the parent-child relationship. See Chavez v. Chavez, 148 S.W.3d 449, 456 (Tex. App.CEl Paso 2004, no pet.); see also Young v. Young, 693 S.W.2d 696, 698 (Tex. App.CHouston [14th Dist.] 1985, writ dism=d) (AA grandparent=s intervention under these circumstances may enhance the trial court=s ability to adjudicate the cause in the best interests of the child.@). In this case, the grandparents testified they kept the children during Reynaldo=s visitation periods and when Edaena traveled with Manuel Troncoso. Further, Edaena has not challenged the fact that the grandparents had substantial past contact with the children. Therefore, the trial court did not abuse its discretion in permitting the grandparents to intervene in the divorce proceeding in which managing conservatorship was an issue. See Chavez, 148 S.W.3d at 456; Segovia-Slape v. Paxson, 893 S.W.2d 694, 696 (Tex. App.CEl Paso 1995, no writ). Edaena=s second issue is overruled. Sufficiency of the Evidence In her first issue, Edaena argues the trial court erred by appointing the grandparents as joint managing conservators with primary physical possession of the children. Edaena contends there was no evidence or insufficient evidence to rebut the parental presumption under section 153.131 of the Family Code. See Tex. Fam. Code Ann. ' 153.131 (Vernon 2002). We review a trial court=s determination of conservatorship for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Under the abuse of discretion standard, a challenge to the legal and factual sufficiency of the evidence is not an independent ground of error, but is merely a factor in assessing whether the trial court abused its discretion. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). In determining a legal insufficiency issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). Anything more than a scintilla of evidence is legally sufficient to support the finding. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int=l, Inc. v. Nat=l Union Fire Ins. Co. of Pittsburgh, PA, 77 S.W.3d 253, 262 (Tex. 2002). We review a trial court=s findings for factual sufficiency by the same standards used in reviewing jury answers. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We consider all the evidence and set aside the findings only if they are so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In addressing these overlapping standards of review, we first determine whether the trial court had sufficient information to exercise its discretion, then we determine whether the court abused its discretion. See Chavez, 148 S.W.3d at 456. If a non-parent and a parent are both seeking managing conservatorship of a child, the Family Code prohibits a court from appointing the non-parent Aunless the 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.@ Tex. Fam. Code Ann. ' 153.131. This creates a strong presumption in favor of parental custody and imposes a heavy burden on a non-parent. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). The non-parent must show by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the children, either physically or emotionally. The Family Code requires the non-parent to offer evidence of specific actions or omissions of the parent, or parents, that demonstrate an award of custody to the parent would result in physical or emotional harm to the child. Id. In this case, there is specific evidence showing that if the children remained with Edaena, their physical and emotional health would be significantly impaired. Edaena acknowledged that she violated the court=s temporary orders by living with Troncoso. She admitted it was not good for her children to see her sleeping with a man to whom she was not married, but she claimed she would not have lived with him if she could afford her own home. Edaena moved out of Troncoso=s house and into her own apartment, but admitted she did so only to comply with the court=s order and would move back in with Troncoso when the divorce was final. In an in camera hearing, the oldest daughter told the trial court that Troncoso may have spanked her younger brothers. The oldest son told the court he would not live with his mother because Troncoso beat him, and his mother did not do anything to help. The oldest son also said that his mother spanked him with a garden hose. Carolyn Holley, who completed the social study investigation in this case, testified there were indications Troncoso hit or whipped some or all of the three younger children. She testified that on one of the occasions she met with Edaena, the children were Atotally out of control.@ Holley testified the children appeared physically healthy but not mentally or emotionally. She testified that all the children have issues with Troncoso and their mother. Edaena told Holley that the last time her oldest son was in her home, Troncoso placed his hands on the boy=s shoulders, led him out of the door, and told him to get out of his house. Holley testified that Edaena did not listen to the children=s complaints about Troncoso and did not address the situation with the children or with Manual. She also said the children were well behaved when she observed them around the grandparents, and she recommended the grandparents as primary custodians. Based on our review of the evidence, we conclude the trial court had sufficient information to exercise its discretion and did not abuse its discretion in appointing the grandparents as joint managing conservators with primary physical possession. We overrule Edaena=s first issue. Child Support Arrears In her third issue, Edaena argues the trial court erred by failing to enter a judgment against Reynaldo for temporary child support arrears and by precluding her from collecting those arrears in the future. Under the temporary orders, Reynaldo was obligated to pay Edaena $450 per month. On March 30, 2003, Edaena filed a motion to enforce for Reynaldo=s failure to pay child support under the temporary orders. The trial court set a hearing date of May 5, 2003 for the motion for enforcement, but we have no record either of a hearing if one was held, or the trial court=s ruling on the request for arrearage, if any. At trial, Edaena testified that the trial court ordered Reynaldo to begin making temporary child support payments on May 5, 2003 and that Reynaldo had made such payments up to the date of trial. Edaena also testified that she requested the trial court to enter judgment on the temporary child support arrearage of $4,257.85. When announcing its judgment, the trial court stated, Athere=s not a Motion for Enforcement that will survive this rendition today.@ Edaena made no objection to the trial court=s statement. Edaena presented no other evidence at trial regarding the arrearage, nor did she file a subsequent motion for enforcement. Further, this court has no record of the hearing that was held on Edaena=s original motion for enforcement. Without a record of the evidence before the trial court at the time the motion was filed or a record of the trial court=s ruling, we cannot determine how the trial court originally ruled on Edaena=s request for an arrearage. Because Edaena failed to timely object to the trial court=s statement or to file a subsequent motion for enforcement, Edaena has not preserved this issue for review. See Tex. R. App. P. 33.1(a). Even if Edaena preserved error, the trial court did not abuse its discretion in failing to render judgment for the temporary support arrearage and in precluding her from seeking further enforcement of the temporary child support. We review a trial court=s determination of child support for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In the divorce decree, the trial court discharged all obligations on the temporary orders and specifically struck a provision that would permit independent enforcement. The provisions of the Family Code contemplate that the trial court has the authority to issue temporary orders separate and apart from the divorce decree. Tex. Fam. Code Ann. ' 6.502 (Vernon Supp. 2005). The rendition of a final divorce decree does not in itself nullify any temporary order with respect to payments past due. Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. Civ. App.CDallas 1980, orig. proceeding). The decree supersedes the temporary order with respect to future support, but the obligation for past support, as fixed by the temporary order, continues unless modified by the provisions of the divorce decree. Shaver, 597 S.W.2d at 500. In this case, the trial court modified the obligation for past support through the divorce decree. Because it is within the court=s discretion to modify the temporary orders, we conclude the trial court did not abuse its discretion in discharging the temporary obligations. See id. Accordingly, we overrule Edaena=s third issue. The Grandparents= Lien In her fourth issue, Edaena argues the trial court erred in recognizing and rendering a judgment on a lien presented by the grandparents because the grandparents did not include the lien in their pleadings and because there is insufficient evidence showing the lien is valid. The final decree of divorce included a paragraph, which stated, AIt is ordered, adjudged, and decreed by the Court that an M&M lien of $44,197.32 is impressed upon the entire ten-acre tract due and payable to [the grandparents].@ Reynaldo testified that the grandparents had aided both parties financially from the beginning of their marriage. On May 12, 2003, the grandparents filed a mechanic=s and materialman=s lien against the parties= property seeking reimbursement in the amount of $44,197.32. The lien reflects it is for labor and materials furnished in the construction and improvement of the house and water well, and clearing the tract of land. The Family Code requires the trial court to order a division of the estate in a manner the court deems just and right, having due regard for the rights of each party. Tex. Fam. Code Ann. ' 7.001 (Vernon 1998). The trial court has wide discretion in dividing the property and debts of spouses upon divorce. See Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). The Family Code further permits a grandparent to intervene in a divorce action for the purpose of seeking conservatorship. Tex. Fam. Code Ann. ' 102.004(b). The Family Code, however, does not permit a grandparent to intervene in a divorce action for the purpose of enforcement of a mechanic=s and materialman=s lien. There is no provision in the Family Code that permits grandparents to intervene in the division of property. Further, a mechanic=s and materialman=s constitutional lien is self‑executing as between the contractor and the owner and is enforceable against the owner without being filed of record. Irving Lumber Co. v. Alltex Mortg. Co., 446 S.W.2d 64, 72 (Tex. Civ. App.CDallas 1969), aff=d, 468 S.W.2d 341 (Tex. 1971). Therefore, the trial court abused its discretion in Aimpressing@ the mechanic=s and materialman=s lien on the property. Edaena=s fourth issue is sustained. The judgment of the trial court is modified to delete the paragraph impressing a mechanic=s and materialman=s lien on the parties= property. The remainder of the judgment is affirmed as modified. /s/ Leslie Brock Yates Justice Judgment rendered and Memorandum Opinion filed November 23, 2005. Panel consists of Justices Yates, Anderson, and Hudson.