Under the Family Code trial court did not have the option to order joint managing conservatorship in divorce custody dispute where husband had received deferred adjudication on domestic violence charge. Trial court was free to disbelieve husband's testimony that wife also acted violently.
EXCERPT FROM THE APPELLATE OPINION
Appointing Sole Managing Conservator
In his first issue, Stuart contends that the evidence is legally and factually insufficient to support the trial court’s final decree of divorce that ordered possession of the parties’ children different from the standard possession order. In his second issue, Stuart asserts that the trial court abused its discretion by “granting sole custody to Debra Guillot as she had committed family violence in the last two years and she had threatened to kill the children.” Stuart does not assert that the trial court abused its discretion by issuing the protective order in November 2005 or that the evidence is insufficient to support that decision.
See Tex. Fam. Code Ann. § 81.009(b) (Vernon Supp. 2007) (“A protective orderrendered against a party in a suit for dissolution of a marriage may not be appealed until the time the final decree of dissolution of the marriage becomes a final,appealable order.”).
The Family Code addresses the trial court’s options in appointing conservators of children when a parent has committed family violence. Section 153.004, “History of Domestic Violence,” provides,
(a) In determining whether to appoint a party as a sole or joint 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 or during the pendency of the suit.
(b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent . . . .
(c) The court shall consider the commission of family violence in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.
(d) The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit, unless the court:
(1) finds that awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and
(2) renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent and that may include a requirement that:
(A) the periods of access be continuously supervised by an entity or person chosen by the court . . . .
Tex. Fam. Code Ann. § 153.004 (Vernon Supp. 2007).
Here, the trial court found that Stuart had committed family violence when it issued the protective order in November 2005. Further, it is undisputed that on July 20, 2004, Stuart received deferred adjudication for assault with an affirmative finding of family violence, which is within two years of the date that Debra filed for divorce on July 22, 2005.
Based on the plain language of the Family Code, the trial court was required to consider this factor in determining conservatorship of and access to the children. See id. § 153.004(a) (trial court “shall consider evidence” of family violence in determining conservatorship); id. §153.004(c) (trial court “shall consider the commission of family violence” in determining access to children).
Further, the Family Code prohibited the trial court from appointing Stuart a joint managing conservator and required the trial court to allow only supervised access to children. Id. § 153.004(b) (trial court “may not appoint joint managing conservators” if history or pattern of physical abuse exists); id. § 153.004(d)(2) (in cases of family violence within two years of filing of suit for dissolution of marriage, trial court “may not allow” access unless possession order designed to protect children, which “may include requirement” of supervised access).
Because the trial court acted consistently with the plain language of the Family Code, we conclude that the trial court did not abuse its discretion by appointing Stuart a possessory conservator or requiring supervised access to the children.
Concerning Stuart’s assertion that Debra also committed family violence, he identifies the testimony of an officer from the Fort Bend County Sheriff’s Office. The officer testified that he responded to a family violence call to the Guillots’ home and found, in addition to a red mark on Debra’s chest, “bruising, scratches on [Stuart’s] face and neck area.” The officer did not state that Debra committed family violence, but Stuart testified that Debra had threatened him and struck him on various occasions. Stuart also testified that Debra, on one occasion, threatened to drown the children if he did not do as she asked. However, Debra denied these accusations.
Because the trial court was presented with conflicting evidence and was required to resolve a factual issue by determining the credibility of the witnesses, we cannot conclude that the trial court abused its discretion by implicitly finding Stuart’s testimony lacking in credibility. See George, 238 S.W.2d at 474.
We overrule Stuart’s first and second issues.
Spousal Support
In his fifth issue, Stuart contends that the trial court abused its discretion by “granting Debra Guillot Spousal Support as she had committed Family Violence.” Specifically, Stuart asserts that the trial court abused its discretion because: (1) a police officer testified that Debra also committed family violence and (2) Debra earned $53,000 a year and has a college education, while Stuart only has a ninth-grade education and a GED.
A trial court may exercise its discretion to award court-ordered maintenance, or “spousal support,” only if the requirements of the Texas Family Code are met. Chafino v. Chafino, 228 S.W.3d 467, 474 (Tex. App.—El Paso 2007, no pet.). The trial court may award spousal maintenance if:
the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 [of the Texas Family Code] and the offense occurred:
(A) within two years before the date on which a suit for dissolution of the marriage is filed; or
(B) while the suit is pending . . . .
Tex. Fam. Code Ann. § 8.051(1) (Vernon 2006).
Here, it is undisputed that Stuart received deferred adjudication for assault with an affirmative finding of family violence on July 20, 2004, which is within two years of the date that Debra filed for divorce on July 22, 2005.
Concerning Stuart’s contention that Debra also committed family violence, we have already determined that the trial court implicitly found Stuart’s testimony on this issue lacked credibility. Thus, we conclude that the trial court did not abuse its discretion because Debra meets the statutory requirement for court-ordered maintenance. See George, 238 S.W.2d at 474 (stating that under abuse of discretion standard, appellate court must defer to factual and credibility determinations made by trial court).
Stuart’s contention that Debra had a better education than he did is not a relevant factor in determining whether to award maintenance. The Family Code lists factors for the trial court to consider in determining the amount of maintenance. See Tex. Fam. Code Ann. § 8.052 (Vernon 2006) (among the factors trial court to consider in determining amount of maintenance is relative education and income of spouses). However, Stuart’s fifth issue specifically states that the trial court erred “in granting Debra Guillot Spousal Support.” Stuart does not make any argument concerning the amount of the award and does not cite to section 8.052 or any relevant case law. To the extent that Stuart is challenging the amount of the maintenance awarded, we conclude that he has waived that issue.
We overrule Stuart’s fifth issue.
Guillot v. Guillot
(Tex.App.- Houston [1st Dist.] June 26, 2008)(Alcala)
(child custody appeal, supervised visitation, spousal support, domestic violence as factor)
Opinion by Justice Alcala Before Justices Nuchia, Alcala and Hanks
01-06-01039-CV Stuart Guillot v. Debra GuillotAppeal from 387th District Court of Fort Bend CountyTrial Court Judge: Hon. Robert J. Kern
Disposition: Trial court's judgment affirmed
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