Cody A. Waters v. Beth T. Waters
04-16-00690-CV
| Tex. App. | Dec 13, 2017Background
- Parties: Beth (wife) filed for divorce; Cody (husband) was incarcerated (15-year sentence for aggravated assault) and represented himself at trial. Children: B.W. and T.W., age nine at trial.
- Abuse/allegations: Beth testified to a long history of domestic violence witnessed by the children, introduced photos, threatening texts, and jail letters in which Cody admitted violence and wrote concerning messages to the children.
- Post-conviction contacts: Two jail visits and ongoing phone/letter contact allegedly caused emotional harm to the children; Beth reduced contact and placed children in frequent counseling.
- Trial court decree: Appointed Beth sole managing conservator and Cody possessory conservator; ordered children remain in counseling and delegated all possession/access decisions between Cody and the children to the children’s counselor.
- Procedural points: Cody argued the court refused to rule on several motions (continuance, interview children, enforce pretrial order); court proceeded to trial after finding discovery was not properly served and exercised discretion on interviewing children under 12.
Issues
| Issue | Plaintiff's Argument (Cody) | Defendant's Argument (Beth) | Held |
|---|---|---|---|
| 1. Trial court refusal to rule on motions (continuance, interview children, enforce pretrial order) | Court erred by not ruling and denying continuance due to lack of discovery; wanted to interview children and enforce pretrial standing order | Discovery was not properly or timely served on Beth; court did rule on interview (declined for children under 12); movant failed to set hearing on enforcement motion | Court did not abuse discretion: denial of continuance proper (discovery not served/timely); refusal to interview within statutory discretion; no abuse for not ruling on enforcement motion where movant failed to set hearing. |
| 2. Appointment of sole managing conservator | Cody argued for joint managing conservatorship | Beth argued sole managing conservatorship was in children’s best interest given family violence, children’s reactions, and Cody’s incarceration | Court did not abuse discretion appointing Beth sole managing conservator; evidence supported finding joint conservatorship not in children’s best interest. |
| 3. Delegation of possession/access to children’s counselor | Court abused discretion by allowing counselor to determine Cody’s possession/access (improper delegation) | Beth argued delegation appropriate to protect children’s best interest given emotional harm and therapist involvement | Court held delegation allowed in limited circumstances but the decree lacked specific, enforceable guidelines; reversed/remanded that portion for clarification. |
| 4. Failure to order child custody evaluation / act in children's best interest | Court erred by not ordering custody evaluation and by allowing therapist to control access | Beth: no request for evaluation was made; trial court has discretion and no showing made that evaluation was necessary | Court did not abuse discretion in not ordering evaluation absent a request or record circumstances requiring one. |
Key Cases Cited
- Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004) (standard for reviewing continuance denials and factors for discovery-based continuances)
- In re J.A.J., 243 S.W.3d 611 (Tex. 2007) (abuse-of-discretion standard for conservatorship determinations)
- In re J.S.P., 278 S.W.3d 414 (Tex. App.—San Antonio 2008) (trial courts may appoint third parties to assist with possession/access but must issue specific, enforceable terms)
- Ordonez v. Solorio, 480 S.W.3d 56 (Tex. App.—El Paso 2015) (party has no duty to respond to discovery not properly served)