Brian K. Heiskell v. Kennith and Sheri Kendrick

Affirmed and Memorandum Opinion filed October 23, 2007 Affirmed and Memorandum Opinion filed October 23, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00972-CV ____________ BRIAN K. HEISKELL, Appellant V. KENNITH AND SHERI KENDRICK, Appellees On Appeal from the 311th District Court Harris County, Texas Trial Court Cause No. 2005-06801 M E M O R A N D U M   O P I N I O N Brian Heiskell appeals the custody award pursuant to a decree of divorce rendered in the matter of the marriage of Brian Heiskell and Misty Heiskell and in the interest of their minor children. The challenged order appoints the maternal grandparents joint managing conservators of the children. We affirm. I.  BACKGROUND Brian Heiskell (AFather@) and Misty Heiskell (AMother@) were married on March 14, 1998. Two children were born of this marriage on September 14, 1998 and June 18, 2001. The marriage was a turbulent one. Mother made several allegations against Father of verbal and physical abuse during the marriage. Father made similar allegations against Mother and claimed that Mother was promiscuous. Mother and Father separated in October 2003. Upon their separation, Mother and Father voluntarily left the two children in the care of the maternal grandparents, appellees, who reside in Sweetwater. Mother stayed in Houston while Father moved to Harlingen. Thereafter, the children returned to stay with Mother in Houston for approximately eight months. The children have been in the constant care of appellees since November 2004. Mother filed for divorce in February 2005, requesting that she be appointed sole managing conservator of the children. Father filed his counter-petition two months later and also requested to be appointed sole managing conservator of the children. In December 2005, appellees filed an intervention alleging that appointment of Father and Mother as joint managing conservators would not be in the best interest of the children and requesting appointment as joint managing conservators of the children. Following a bench trial held on May 22, 2006, the district court appointed appellees joint managing conservators and Father and Mother possessory conservators with corresponding periods of possession. Father presents two issues for review in this appeal. He argues that (1) appellees failed to prove that his appointment as managing conservator would significantly impair the children=s physical health or emotional development and (2) appellees failed to satisfy the higher standard of proof required to rebut the parental presumption that appointment of Father as managing conservator is in the best interest of the children. We will address each issue in turn. II.  ANALYSIS A. Standards of Review When courts resolve questions regarding conservatorship, the best interest of the child is the primary consideration. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002). Moreover, the trial judge has wide latitude in determining best interest. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Indeed, we cannot interfere with the trial court=s ultimate decision unless we conclude that it abused its discretion. In the Interest of Doe, 917 S.W.2d 139, 141 (Tex. App.CAmarillo 1996, writ denied). Generally, the test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the trial court acted arbitrarily and unreasonably. See McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.CHouston [14th Dist.] 2002, no pet.). There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court=s decision. Id. In a sufficiency review, appellate courts apply a hybrid analysis because sufficiency of the evidence and abuse of discretion standards of review often overlap in family law cases. See In re D.S., 76 S.W.3d 512, 516 (Tex. App.CHouston [14th Dist.] 2002, no pet). Within this overarching standard, we engage in a two-pronged inquiry to determine whether the trial court (1) had sufficient information on which to exercise its discretion and (2) erred in its application of discretion. Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.CAustin 2006, pet. denied). The traditional sufficiency review comes into play with regard to the first question, and those standards are discussed below. See id. With regard to the second question, we determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. Thus, we resolve the second question by determining whether the trial court=s findings constitute an abuse of discretion. The mere fact that a trial judge may decide a matter within his discretion in a different manner than appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.CHouston [1st Dist.] 2007, no pet.). B. Legal and Factual Sufficiency In appellant=s first issue, he argues that the evidence presented at trial is not legally or factually sufficient to support the trial court=s decision to appoint appellees joint managing conservators based on its implied finding that Father=s appointment would significantly impair the physical health or emotional development of the children. The evidence is legally insufficient only if (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether there is legally sufficient evidence to support the trial court's exercise of discretion, we consider evidence and inferences favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); In Re H.C. & S.C., 942 S.W.2d 661, 664 (Tex. App.CSan Antonio 1997, no writ). In analyzing a challenge to the factual sufficiency of the evidence, we examine the entire record to determine if the trial court=s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752-53 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Next, in analyzing whether to appoint a parent or nonparent as managing conservator, statute requires the court to presume that appointing a biological parent is in the best interest of the child. See Tex. Fam. Code Ann. ' 153.131(a) (Vernon 2001). Consequently, this parental presumption imposes a heavy burden on a non-parent seeking conservatorship. See Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). It is not adequate to offer evidence that a nonparent would be a better custodian of the child. Id. Still, this parental presumption is rebuttable. For instance, proof that such an appointment would significantly impair the child=s physical health or emotional development negates the parental presumption, as does a finding of a history of family violence involving the parents of a child. See Tex. Fam. Code Ann. '' 153.131(a), 153.131(b),153.004(b) (Vernon 2001). In the instant case, we must determine whether there was sufficient evidence to support the trial court=s implied finding (1) that appointing Father as managing conservator would significantly impair the children=s physical health or emotional development or (2) that there exists a history of family violence involving the parents of the children.[1] See id. 1. Impairment to Children=s Physical Health or Emotional Development Under Section 153.131 For the court to award managing conservatorship to a nonparent under section 153.131, the nonparent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. Whitworth, 222 S.W.3d at 623. There must be evidence to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. Id. In essence, section 153.131 presumes that the best interests of a child is served when a biological parent is appointed managing conservator unless there is evidence that the biological parent has engaged in specific acts that would impair the child=s physical health or emotional development. Father alleges that there is insufficient evidence to support the implied finding that his appointment as managing conservator would impair the children=s physical health or emotional development. Specifically, he argues that the evidence presented at trial was insufficient to rebut the parental presumption under section 153.131. In support of his argument, Father cites excerpts from the testimony at the divorce proceeding to the effect that (1) he was never convicted of a crime involving family violence; (2) he removed himself from a volatile situation with Mother and began counseling to deal with his violent outbursts; (3) he has not been involved in any physical altercation since June 2004; (4) he has maintained health insurance on the children; (5) he has exercised possession and access to the children during the pendency of the divorce; and (6) he has made some child support payments to Mother and appellees. Relying on May v. May, 829 S.W.2d 373, 377-78 (Tex. App.CCorpus Christi 1992, writ denied), Father contends that the material time concerning fitness for child custody is the present, not the past; the fact that the parent would not have been a proper custodian sometime in the past is not controlling. Though highly disputed by Father, there is evidence that awarding Father managing conservatorship would significantly impair the children=s physical health or emotional development. Specifically, there is evidence that Father physically attacked Mother on a number of occasions, one of which transpired while the daughter was in harm=s way. Father made only sporadic visits to the children following the separation (ten visits over two years and seven months) and has failed to provide adequate financial support for the children. Additionally, Mother and appellees testified that the son has exhibited violent behavior towards his sister, Mother, and appellees, indicating that such violence was acceptable because ADaddy did it.@ The violent behavior diminished after the child was placed in the care of appellees. There is evidence that Father accepted money from a man in consideration for his wife=s Acompanionship.@[2] See Whitworth, 222 S.W.3d at 623 (stating that an adult=s future conduct may be somewhat determined by recent past conduct.). An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court=s decision. Id. We find that there is sufficient evidence to support the trial court=s implied finding that appointing Father as managing conservator would significantly impair the children=s physical health or emotional development. 2. Finding of a History of Family Violence Under Sections 153.131(b) and 153.004(b) A finding of a history of family violence also rebuts the section 153.131 parental 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 in the best interest of the child. See Tex. Fam. Code Ann. ' 153.131(b). The presumption is rebutted if sufficient evidence is presented showing a history or pattern of past or present child neglect, or physical abuse by that parent directed against the other parent, a spouse or a child. Tex. Fam. Code Ann. ' 153.004(b). In the instant case, there is sufficient evidence to support a finding of a history of family violence. See Tex. Fam. Code Ann. ' 71.004 (Vernon 2002) (family violence is an act by a member of a family against another member of the family that is intended to result in physical harm, bodily injury, assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury or assault). There was testimony that Father physically attacked Mother on a number of occasions during the marriage. One such attack led to a thirty-day deferred adjudication of guilt and a magistrate order for emergency protection against Father. At least one of the physical altercations occurred while the daughter was endangered. It is undisputed by Father that he made an oral threat to beat his wife to death. All of these incidents occurred within two years of the divorce action. See Tex. Fam. Code Ann. ' 153.004 (in determining whether to appoint a party a managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party=s spouse committed within a two-year period preceding the filing of the suit). There is sufficient evidence to support the trial court=s implied finding of a history of family violence to rebut the parental presumption. Considering the evidence and inferences in favor of the finding, we find the evidence to be legally sufficient to support the trial court=s decision. Additionally, we find that the evidence is not so against the great weight and preponderance of the evidence to be manifestly unjust. We find that (1) there is sufficient evidence that Father=s appointment as managing conservator would significantly impair the children=s physical health or emotional development and (2) there is sufficient evidence to support the court=s implied finding of a history of family violence involving the parents and the children. This evidence negates the parental presumption. Under the applicable standard of review, we find the evidence is legally and factually sufficient to support the trial court=s decision. We overrule Father=s first issue. C. Best Interest Test In Father=s second issue, he contends that the trial court abused its discretion in finding that appellees successfully rebutted the presumption that his appointment as managing conservator was in the best interests of the children. Specifically, he argues that appellees failed to meet the Ahigher standard@ of proof required to rebut the parental presumption. In 1995, the Texas Legislature substantially revised to the Texas Family Code regarding the parental presumption and family violence in custody cases. Father argues that when a non-parent is appointed managing conservator, the court must apply a higher standard to determine the best interests of the child. He attempts to support his contention that the standard Abest interests@ test is inappropriate in this case based on Brooks v. Brooks, 881 S.W.2d 297, 298 (Tex. 1994). He argues that Brooks imposes a higher level of analysis under section 14.07 in cases awarding custody to a nonparent. We note that section 14.07 was repealed in 1995. Act of May 10, 1991, 72nd Leg., R.S., ch. 161, ' 3, 1991 Tex. Gen. Laws 771, repealed and recodified by Act of April 6, 1995, 74th Leg., R.S., ch. 20, 1995 Tex. Gen. Laws 113. Even under the former section 14.07, the higher standard outlined in Brooks is essentially the current parental presumption under the new section 153.131(a). See Brooks, 881 S.W.2d at 298 (holding that before appointing a non-parent sole conservatorship, there must be proof that Aappointment of the parent would significantly impair the child=s health or emotional development@). It is undisputed that statute requires primary consideration of the best interest of the child in determining the issues of conservatorship and possession of and access to the child. See Tex. Fam. Code Ann. ' 153.002. There is no authority imposing a different test or higher standard to be applied to a custody case awarding non-parents sole managing conservatorship and biological parents possessory conservatorship. We hold that the trial court did not abuse its discretion in finding that appointment of appellees as managing conservators is in the best interest of the children. We overrule Father=s final issue. We affirm the judgment of the trial court. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed October 23, 2007. Panel consists of Chief Justice Hedges and Justices Frost and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The record does not contain an explicit affirmative finding by the trial court that (1) appointment of Father as managing conservator would significantly impair the children=s physical health or emotional development or (2) there exists a history of family violence. We do note, however, that the trial court made an oral finding during the divorce trial that Aall Family Code requirements for the Court to make t[he conservatorship] appointments have been satisfied by the evidence presented in the course of this trial.@ The final decree of divorce also states AThe Court finds that all requirements of the Family Code, necessary to award custody of the children to Intervenors, have been met.@ [2] Mother testified at trial that Father Apimped@ her out to a Mr. Ward. Mother indicated that Mr. Ward and Father met in person and made an agreement wherein for Mr. Ward=s payment of $15,000, Father would allow Mr. Ward to spend time with Mother while Mr. Ward=s wife was out of town. Father testified that he took the money from Mr. Ward because it was Aeasy money,@ but denied that he entered into such an agreement to prostitute his wife.