in the Interest Of: R.R. and J v. Children, 05-14-00773-CV

Background

Parents (Father: Rogelio Villa a/k/a Jose Lopez; Mother: Bertha Ramirez) separated after a long relationship; two children born 2000 and 2002. Mother alleged historical physical and emotional abuse by Father; Father denied abuse.
After separation, children expressed intense fear of Father; supervised visitation at two facilities and family/individual therapy failed to reunify them with Father.
Court-ordered social study and therapists interviewed children; reports and witnesses described children as fearful, traumatized, and unwilling to visit Father.
Father had significant 2008 income from a trucking business ($173,071.11 reported) but later claimed reduced/no income, helped his wife’s trucking business without pay, and asserted immigration-related limits on work.
Trial court: appointed Mother sole managing conservator, suspended unsupervised visitation, ordered supervised visitation and reunification therapy; found Father voluntarily underemployed and imputed earnings based on diesel mechanic wages to calculate child support.

Issues

Issue	Plaintiff's Argument (Mother)	Defendant's Argument (Father)	Held
Whether trial court abused discretion in naming Mother sole managing conservator	Awarding sole conservatorship protects children given their fear and failed reunification attempts	Father argued no recent family violence; alleged parental alienation and that presumption for joint conservatorship remained unrebutted	Affirmed: Trial court did not abuse discretion; evidence about children’s fear, failed supervised visits, Mother as primary caregiver supported sole managing conservatorship
Whether testimony of social worker and therapist should have been excluded for discovery violations	Their testimony and reports were timely in social study and disclosed; admission did not unfairly surprise Father	Father argued witnesses were not timely disclosed or designated as experts, so testimony should be excluded	Overruled: Father waived/failed to timely object to one witness; court did not abuse discretion admitting the other given disclosure in social study and adjournment to allow preparation
Whether trial court erred in finding Father voluntarily underemployed	Mother relied on Father’s prior high earnings, current minimal reported income, and claims he performed unpaid mechanical work to impute earnings	Father claimed limited assets, inability to work legally, and lack of mechanic training; contested use of Dept. of Labor wage evidence	Affirmed: Evidence supported finding of intentional underemployment and imputing earnings based on diesel mechanic wages for child support calculation
Admissibility/use of Bureau of Labor Statistics wage data	Mother used BLS statistics to estimate mechanic wages for imputation	Father contended BLS evidence inadmissible and court improperly penalized his immigration status	Court accepted BLS data and found Father’s testimony supported inference he performed/was capable of mechanic work despite immigration claims; BLS evidence permissible for imputation

Key Cases Cited

Fort Brown Villas III Condominium Ass’n, Inc. v. Gillenwater, 285 S.W.3d 879 (Tex. 2009) (trial court discretion on admitting undisclosed witnesses and discovery sanctions)
Spurk v. Texas Dep’t of Family & Protective Servs., 396 S.W.3d 205 (Tex. App.—Austin 2013) (abuse-of-discretion review on discovery/admissibility)
In re J.A.J., 243 S.W.3d 611 (Tex. 2007) (standards for conservatorship abuse-of-discretion review)
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (definition of abuse of discretion)
In re V.L.K., 24 S.W.3d 338 (Tex. 2000) (best interest as primary consideration in conservatorship)
In re S.E.K., 294 S.W.3d 926 (Tex. App.—Dallas 2009) (deference to trial court credibility findings in custody disputes)
Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011) (standards for imputing income for child support when obligor is intentionally underemployed)