Chad Lee S. v. Melinda A. S., 02-14-00135-CV

Background

Mother filed for divorce and sought sole managing conservatorship and a protective order; temporary orders initially made both parents temporary joint managing conservators with Mother having primary residence.
Father sought expanded possession and exchanges at neutral locations; temporary orders later increased his visitation and allowed third-party pick-ups.
At trial the jury found Mother should be sole managing conservator and that Father should not be a possessory conservator; the trial court incorporated the verdict and denied Father possession or access to the child.
Father moved for JNOV and for a new trial, arguing (among other things) that the jury’s denial of possessory conservatorship effected a de facto termination of parental rights under a preponderance standard and violated due process; the trial court initially granted a new trial but a mandamus proceeding required the court to reinstate the original decree.
The evidence at trial included Mother’s testimony of physical and emotional abuse by Father, videos of hostile custody exchanges, expert testimony about Father’s frontal-lobe brain injury and impulse control problems, Father’s criminal history, and testimony showing Father’s bond with the child.
The trial court denied Father conservatorship, possession, and access; Father appealed the conservatorship and access rulings.

Issues

Issue	Plaintiff's Argument (Father)	Defendant's Argument (Mother)	Held
1. Whether trial court erred in denying JNOV because it could contravene jury’s non-appointment under Tex. Fam. Code §105.002(c)	§105.002(c) does not bar the court from contravening a jury verdict that declines to appoint a possessory conservator	§105.002(c) bars contravening a jury verdict on appointment (including non-appointment) of a possessory conservator	Court: §105.002(c) prevents contravening the jury verdict; JNOV denial affirmed
2. Legal sufficiency of evidence that Father should not be joint managing conservator	No evidence supports finding Father’s appointment would significantly impair the child’s health or development	Evidence of history/pattern of family violence and abuse supported rebutting presumption of joint managing conservatorship	Court: Evidence legally sufficient to deny joint managing conservatorship
3. Legal sufficiency of evidence that Father should not be possessory conservator (endangerment/best interest)	No evidence that possession or access would endanger child or be against child’s best interest	Evidence of violent incidents, videos of hostile exchanges, expert opinion re: impulse control and noncompliance with treatment supported endangerment and best-interest findings	Court: Evidence legally sufficient to support denial of possessory conservatorship
4. Whether trial court abused discretion by denying all access/possession even though it could not submit specific possession conditions to the jury	Total denial of access is extreme and should be remanded for tailored access/conditions	Given jury’s implicit findings that access would endanger the child, trial court had discretion to set terms (including denial) that protect best interest	Court: Trial court did not abuse discretion in denying Father access/possession in light of jury findings

Key Cases Cited

In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012) (trial court must give a legally appropriate, specific reason when granting new trial)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for reviewing legal sufficiency and juror credibility)
F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007) (statutory construction reviewed de novo; plain language controls)
Romero v. KPH Consolidation, Inc., 166 S.W.3d 212 (Tex. 2005) (sufficiency review is conducted in light of the charge when no charge objection is made)
In re J.A.J., 243 S.W.3d 611 (Tex. 2007) (distinguishing burdens of proof between conservatorship and termination contexts)