*1 (f/k/a L. DENNIS Smith), Appellant,
v. SMITH, Appellee.
Glenn Walter
No. 01-96-00177-CV. Texas, Appeals
Court of (1st Dist.).
Houston 30, 1997.
Oct.
Rehearing Overruled Jan. Houston, Casey, Appellant.
Shawn Houston, Grubb, Appellee. K. John *2 68 COHEN,
Before pay HEDGES and to for mediation three sessions before O’CONNOR, suing. JJ.
OPINION Standard Review COHEN, Justice. judges Trial have wide discretion with re Appellant, (Linda), Linda Dennis com- control, spect custody, possession, support, to plains provisions judg- her divorce involving and visitation matters the child. conservatorship, ment on support, and 449, Gillespie Gillespie, 644 v. S.W.2d 451 mediation. We reform and affirm. (Tex.1982) Holley (custody); Holley, 864 v. (Tex.App.—Houston [1st S.W.2d
Facts denied) (child support). Dist.] writ husband, Linda sued her Glenn Walter if only judge reverse her abused (Glenn), By agreement, divorce. by acting any discretion without reference to appointed temporary joint were manag- guiding principles by rules or acting or arbi ing MDS, conservators of who was then al- trarily unreasonably. Stamp or v. Worford years most given er, four Glenn physi- (Tex.1990). old. was 108, 109 801 S.W.2d There is possession cal for approximately MDS 38% sup no abuse of discretion some evidence year. Linda had ports rest of Holley, the decision. 864 S.W.2d at time, right had the exclusive to establish legal County, MDS’s domicilе within Harris right had the select to MDS’s school Rights Conservatorship of Joint conferring after with Glenn. The one,
stipulated judge and the trial found there Linda com In good plains was ordering judge cause abused her party for not either discretion However, awarding right to to the other. Glenn the exclusive to select provide both were school. clothing, ordered to MDS’s domicile and MDS food, shelter, care, medical and education. issues, determining In such the child’s best Later, trial, at judge found that primary is the consideration. Tex. “parties operated with no child ei- (Vernon 1996). § 153.002 Fam.Code Ann. way years; they pretty ther split two well joint There is a rebuttable middle; things paid down the Glenn ... has managing conservatorship is in the child’s that, insurance,” expenses all medical interest. Tex. agreed temporary required orders that (Vernon 1996). appointing joint 153.131 support payments “promoted cooper- conservators, managing the court shall: ation between the and benefitted” the (1) county of child. establish the residencе of order, by until altered further trial, jury At waived a designate ex- the conservator who has the agreed joint managing to be named conserva- right primary clusive to determine the res- judge appointed “pri- tors. as the idence of the mary possessory parent,”1 gave but right legal establish (2) the exclusive to MDS’s specify rights and duties of each County domicile and residence Harris care, parent regarding physical the child’s select Both were MDS’s school. education; support, and providing ordered MDS cloth- provisions disrup- include minimize food, shelter, care, ing, medical and edu- education, routine, daily tion of the child’s cation, again good found but the cause Mends;.... and association with pay money ordering either (Vernon 153.134(b) provide other. Glenn was ordered Fam.Code Ann. arose, dispute joint If Ordinarily, health the court in a man- insurance. aging conservatorship party desiring judicial required designate relief was must possessory "primary parent.” not define Code does decided, inap- primary physical although correctly Leithold is child’s residence. (Vernon 1996).2 plicable. 153.136 however, on, opinion went The Leithold awarding Linda contends that “custody” describing justify itself what right legal exclusive dom- establish MDS’s change in by showing how the minor County icile and re- residence within Harris *3 custody. To show did affect visitation not moves, quires her to move if Glenn thus above. that, quoted it the dictum stated nanny making “nothing her more a than result change the language does That serving at her ex-husband’s convenience.” conservatorshiр “does managing here. Joint designa- She contends this conflicts with her periods require equal nearly equal or ... “primary possessory tion in the the decree as possession_” Fam.Code physical Tex. of parent.” following Linda on the dic- relies (Vernon 1996). § 153.135 Both conser Plass, Ann. 698, in tum Leithold v. 413 700 S.W.2d joint child. responsibility for the vators share (Tex.1967): 153.131(b); §§ See Tex. Ann. Custody right of a child connotes the (Vernon 1996). 151.003; That is 153.133-.134 establish the child’s domicile includes and in law a fundamental difference from the the elements of immediate care and direct effect before 153.131 was enacted. section child, together pro- control of the then The law considered the non-custodial for its rights visions needs. These inher- having “only parent to be one the occasional by in a custody ent status are not held one Leithold, at right of visitation.” 413 S.W.2d enjoying rights.... visitation 702, (Norvell, J., dissenting). n. 1 The dis (citations omitted). argues Id. She that this arguments against in sent Leithold contains language means that because she has “custo- custody,” con “split “the evil” of which was MDS, dy” of she should havе the exclusive requiring the child be demned right place to determine MDS’s of residence. parent one the oth- “hawked about from er_” disagree. The decision in is Moreover, Leithold then Id. at 704. the law entirely common, on judge-made based law. endorsed sex discrimination in favor of wom preceded Family en, It of custody enactment giving preference them in child Code, Martin, 153.131, specifically section which cases. Martin v. 132 S.W.2d joint custody 1939, writ), public policy makes of this cit (Tex.Civ.App. 428 no — Waco Leithоld, law, today’s at approval state. Under not “one in 413 ed with S.W.2d Leithold, (Norvell, J., enjoying rights.” dissenting) (citing as visitation 413 704 Martin “joint “leading often case” in managing at 700. He is a and most cited S.W.2d Texas). conservator.” Both he and have “cus- Linda
tody” responsibility legally shared long way a since then. We have come rights.” MDS. Neither has “visitation illegal. Such sex discrimination now Tex. Moreover, art.L, nothing 3a; to do with Leithold Const. 1996) (in (Vernon deciding the issue before us. The issue there was conser- 153.003 access); ordering in vatorship, possessiоn, whether visitation California Fam. (Vernon 1996) (in year “change of deter two weeks constituted a 154.010 Code McLean, custody,” mining support); as the intermediate had sur- re court (Tex.1987). held, is a merely change That prisingly in visita- S.W.2d 697-98 major why joint managing have a Naturally, reason we tion. 413 S.W.2d at today. long no change court in visita- conservator statute The law supreme held it was tion, the mother is the better judgment, presumes er reversed the lower court’s Thus, if the parent the child. But even approved change visitation. rаise provided: the court of until altered further order of 2. The decree continuing jurisdiction. It OR- is further ORDERED AND DECREED that IT IS legal shall child shall DERED that GLENN WALTER SMITH domicile and residence Texas, legal County, right until order of Harris further exclusive establish court, enjoined from County, are this removing domicile the child within Harris County, Tex- the child from HARRIS Texas. changing purpose the domicile as for the dictum Leithold holding, were the it would parents Glenn Walter Smith’s still be clear that Code provide Dennis Smith’s sister back passed by. Thus, just up. longer there is no presumption that the mother should raise 16. At the time Linda Dennis Smith was child, there is that the claiming joint managing that a conserva-
conservator longer period with the posses- torship working, Sallye was not Dr. Web- sion should decide goes where a child lives or ster found that for the to effect a not, to school. The issue is being is someone joint managing conservatorship and make nanny? is, made a The issue son, what is in the it work for the and their child’s best interest? should be involved all of encourage [MDS’s] activities and should Did the trial abuse her discretion *4 development relationships with the concluding that the child’s best interests extended families. were served entrusting such decisions to 17. Glenn Walter Smith and Linda Den- light Glenn? Not in following of the findings good job keeping nis Smith do a each other fact, most of which are not attacked care, doctors, day informed about extra- appeal:3 Linda on activities, curricular pick-ups and deliver- parties 5. The separated September in ies. 1998, when the child ... approximate- parties 18. The following been es- ly years three old. sentially periods the same February, since 1994. parties [MÍDS]was bom to the Sep- on 27,1990. 20. Linda Dennis Smith and tember Glenn Wal- ter Smith believe it is in [MDS’s] stayed 8. Linda Dennis Smith home with parents; to have time with both [MDS] until he was almost eleven months be phone [MDS] able to talk on the old. frequently parents; with both it is 9. Glenn Walter Smith worked a lot of parents [MDS’s] best interest for both overtime night during and went to school participate in extracurricular activities [MDS’s]first eleven months. [MDS]; with in that its [MDS’s]best inter- 10. The est to have access to the Agreed entered into doctors. Tem- porary Orders. 21. Linda Dennis Smith does not want to living be restricted to in County Harris 11. The together; owned a house however, with [MDS] she want does they separated, when Linda Dennis Smith Walter Smith to living be restricted to in apartment moved into an and Glenn Wal- County Harris with [MDS]. stayed ter Smith in the house. 22. Linda Dennis Smith believes she away should be able to move from [MDS] mother, 13. Linda Dennis has Smith Smith, Glenn Walter but Glenn Walter living; father and three sisters [MDS] has Smith should not be able to move [MDS] grandparents seen his maternal infre- away from Linda Dennis Smith. quently only one of his mother’s sis- 23. Linda Dennis Smith does not want to ters. consult with Glenn Walter Smith before job anywhere she takes a mother, and wants to be 14. Glenn Walter has Smith able to happens [MDS] take wherever she father, living; three brothers and a sister going. to be family; Glenn Walter Smith has a close trial, people; they help are decent each 24. At the time of other. arrangements been able to make 14, 16, 21, 27, one, findings every except only 3. Linda attacks it mentions two of Glenn's one, accоrding listing brothers, ato under living finding rather than three. See argument but none are mentioned in the point under below. Nevertheless, supports one. the record and, care, soccer, etc., involved day swimming, Walter Smith was 34. Glenn start; he very from financial life [MDS’s] has suffered from a [MDS] training class take care of babies. standpoint. took returned Linda Dennis Smith 35. When plans Dennis 25. Linda Smith has no work, parenting shared move, remarries, but if she to be she wants duties; [MDS] took Glenn Walter Smith move, though able to even it would be time and giver at half оf the his care least healthy away from his [MDS] to the doctor. [MDS] took dad. three bed- Smith has a 36. Glenn Walter Austin, psychia- 26. Dr. Richard a clinical room, house; [MDS] has his own room trist, evaluated Glenn Walter Smith along a dirt garden the back little ability skills; parenting his Glenn Wal- only has ever pile; it is the house [MDS] parent- an grasp ter Smith has excellent known. children; ing and emotional needs of thirty house seconds [MDS’s] is about good consistency Walter Smith neighborhood school from the local discipline; Glenn Walter scored Smith fillеd with children. upper custody quotient; of the he 10% ability has the to focus on the needs [MDS] enroll 38. Glenn Walter putting orients towards *5 School; Elementary of the its one Clark first; child’s needs is Glenn Walter Smith schools area. highest rated in the strongly disruption committed the least house is a sev- 39. Glenn Walter Smith’s prevention of the child and the of the loss Linda Dennis minute drive from en parent; of either Walter Smith minute drive apartment; a ten Smith’s encourage a fre- [MDS] to maintain work; minute eight from his seven continuing quent relationship with his care; day fifteen [MDS’s] drive from mother; superi- Glenn Walter has a Smith paternal grand- minute drive from [MDS’s] intelligence. or level of parents house. 27. Linda Dennis not know Smith does place of em- Dennis 40. Linda Smith’s [MDS] what school attend based would away from 35 to minutes ployment is 40 residency upon apartment. of her Elementary day school. Clark dating man 28. Linda Dennis Smith is to his 41. Walter is close Smith away; that has a house 15 miles retired; about his parents; his father is marriage possibility; is a she does years; married have been 43 or sick; school his is lо- know what district house he is taken care of when [MDS] have cated in. fre- goes grandparents over to his [MDS] quently. Walter Smith is more focused 29. Glenn uncle and aunt 42. one [MDS] activities; Linda Dennis Smith [MDS’s] on family marriage of the on his father's side more relaxed. is sees; [MDS] cousins that with two he uncle on his father’s side
has one is Walter [MDS] with Glenn 31. When family working degree on a at A & M and Smith, chil- plays neighborhood to him. is close house. their house and at Glenn’s dren —at willing to is be 43. Glenn Walter Smith given right to establish restricted good relationship with has a [MDS] 32. residence and domicile. [MDS’s] father; father; obeys relaxed his his father; Walter his that Glenn around Linda Den- Glenn Walter Smith and a good parent. is considered together to work nis Smith have been able up and show [MDS’s] house, That at Glenn Walter Smith’s together for extracurricular activities. Elementary go to would Clark [MDS] sought a lot Walter Smith has 45. Glenn Spring Independent School School read a guidance, parenting advice and good it is a school. District and publications parenting monthly lot of and attended Glenn’s nеt resources were found to $2,396.87, $1,917.39. classes. and Linda’s were monthly found Glenn’s 46. The operated with no port obligation under way years; either for two (20% guidelines would be $479.37 they pretty split things well down the mid- $2,396.87), and Linda’s would be dle; $383.48 paid Glenn Walter Smith has all medi- (20% $1,917.39). See cal expenses and carries insurance. 154.125(b)(Vernon 1996). judge’s five quick 47. Linda Dennis Smith has a tem- deviating guidelines reasons from the are per. discussed below. really ap- 48. Linda Dennis Smith doesn’t preciate structure; family Glenn Walter Support conforming guidelines Smith does. presumed to be the child’s best interest. very 49. Glenn family Walter Smith is 154.122(a) (Vernon oriented. is rebuttable large sup- 50. Glenn Walter Smith has a evidence that shows a variance is port network. child’s best interests. Tex. Fam.Code Ann. 154.123(a) (Vernon 1996). determining judge’s findings concerning The trial vary guidelines, whether to from the skills, parenting training, Glenn’s and devo- court shall evidence of all consider relevant tion, family support, opinion his Dr. Austin’s factors, including: Glenn, along with the absence of Linda’s family support, appreciation Linda’s lack of (1) agе and needs of the structure, family quick temper, Linda’s ignorance Linda’s of what school location, apartment’s
attend based on her *6 the amount of time of of and parenting and Linda’s relaxed behavior all access to a support judge’s the trial decision to let Glenn decide where lives and learns. The judge trial did not act without reference to (12) provision for health care insurance guiding principles and did not abuse her payment ex- of uninsured medical
discretion. penses; point overrule of errоr one. Support Child by debts or debt service assumed ei- two, Linda contends party; ther judge by abused her discretion (17) any with other reason consistent requiring pay support. Glenn to child child, taking interest of the into provides: The decree consideration the circumstances of the AND It is ORDERED DECREED that parents. and LINDA GLENN WALTER SMITH 154.123(b) (Vernon Tex. Fam.Code Ann. SMITH, the concurrent DENNIS have 1996). support An order of no child has been [MDS], child, support including duty to discretion, upheld against a claim of abuse food, clothing, providing the child with though even the difference in the husband’s shelter, The medical care and education. earnings greater much than it and wife’s was good cause exists for not court finds Sanchez, this case. Sanchez v. party pay support child ordering either to 99,103 (Tex.App. Antonio S.W.2d — San support for of the any party other writ) J., (Lopez, dissenting.). child, [MDS]. justifying judge The stated reasons health in- five was ordered to maintain vary pay her decision to from the child party Each was to surance for MDS. expenses. guidelines. any uninsured medical 50% of Mаnaging Conservatorship cooperation existing at the spirit Joint time temporary Time of entered has to be Amount of Possession orders were light thing past in of the considered a of the judge’s first reason was: litigate the parties’ child subsequent need parties appointed Managing Both are Joint support.” Given related issues of access spend Conservators substantial agreed two-year parties’ successful time with the child. payments, experience periodic we without apрroximately Glenn will the child 38% say her judge cannot abused discre- that the year, a “substantial time.” This is a simply issues were tion because various con- judge required factor was consider. at trial. tested 154.123(b)(4)(Vernon so, By doing she acted with reference 3. Glenn’s House principle, to a guiding required as she was judge’s was: third reason in exercising do her broad discretion. will maintain GLENN WALTER SMITH Agreed Temporary Orders a house for [MDS]. The judge’s second reason was: agreement, judge By awarded the agreed Temporary Under the terms of the pay him house to Glenn and ordered agreed periodic Orders the to no mortgage and to hold Linda harmless from joint obligation and a to child that debt. testified he intended to port. joint obligation their however, MDS; keep the house for agreed Temporary Orders probably lose ordered to he were promoted cooperation between the his financial situation because [MDS]. and benefitted “tight.” The judge found that the had func- Assumption judge a factor the of debt is i.e., years, tiоned two over entire time deviating guide- had to consider in from the trial, separation from their until without ei- lines. See paying ther other. This 154.123(b)(16) (Vernon 1996). so, She did express, court-approved agree- their acting guiding princi- regard thus for a agree- ment five months and informal ple. preceding ment 20 months. The trial complains that this factor does not 24) (finding of fact found *7 support pay- of child absence parties arrange- had “been able to make judge ments because did not order Glenn soccer, dаycare, swimming, ments for etc. to maintain and not to sell it. If the house not suffered from a [MDS] has financial house, sells or to maintain the fails standpoint.” finding judge’s The [MDS] then, judge trial can deal with that as a supported had not suffered is well condition, possibility changed but the mere of argue record. to Linda does not the con- keep judge happening from does trary. considering its costs the house and as supported judge’s finding The 46 is also deciding in to award child factor whether the record: support now. parties operated The have no child years. They pretty two well Meeting MDS’s Material Finan- middle; ... split things down the Needs cial paid expenses carries has all medical judge’s reason was: The fourth insurance. to parties and will continue see The have strongly supports finding The record that all of material and financial [MDS’s] parties cooperated and that has that the needs are met. judge The attributed this benefitted [MDS]. proper for the trial court to “joint obligation their child We find was to the determining consider needs in wheth- agreed....” points to evidence MDS’s Linda guide- Rather, argues “any er to deviate form the child she contrary. feasible, See .... recommend that the lines. 154.123(b)(1),(2), (Vernon dispute use an alternative resolution meth- requesting od before enforcement or modi- 5. Best Interests of MDS fication of the terms and conditions of judge’s The fifth was: reason joint conservatorship through litigation, except emergency. in It the best an [MDS] interest of obligate their child 153.134(b)(5) (Vernon Tex. Fam.Code Ann. as set forth in thе attached decree. 1996) added). (emphasis judge’s The order proper We find it was for the trial court to hold here is not a “recommendation.” We consider by ordering MDS’s best interests. the court mediation as a erred modify. prerequisite filing motion 154.123(b)(17) See Tex Fam.Code Ann. (1996). Accordingly, point of error we sustain three. judge We hold the did not abuse her dis- point
cretion. We overrule of error two. judgment by striking para- We reform the
graph entitled of Future Dis- “Settlement Mediation reformed, putes.” judgment As so affirmed. three, argues Linda authority had no to order O’CONNOR, J., dissenting. prerequisite filing any mediation as a fu modify. agree. ture motion to O’CONNOR, Justice, dissenting provides: The decree I dissent. dispute If in the event arises between majority of affirms the decision LINDA DENNIS SMITH and GLENN giving day-to-day responsibili- trial court concerning WALTER SMITH the conser- mother, ty raising the child to the no child vatorship, periods possession, mother, support to the and all the control child, port may party notify of their either county over the child’s school and of resi- party writing the other of the exact Linda Dennis dence father. dispute nature of the and shall within sev- (Linda) possession of has MDS 62% days en schedule mediation session. (Glenn) time and Glenn Walter Smith [sic] shall attend than three media- possession of him 38% the time. Glenn tion to see if can resolve sessions pays support; pays no child instead he party seeking
their differences. The medi- mortgage on his own house. ation shall select a mediator is a li- who two, complains In point of error psychologist censed аnd has received medi- requir- trial court abused its discretion training, ation and shall for the cost of ing payment periodic support by mediation. Glenn. filing prerequisite Mediation is a a Mo- majority correctly opinion states the *8 Modify. tion to However, my opin- of standards review. Family provides: the writ- The Code “On ion, incorrectly applied the the trial court the agreement ten or on court’s under the standard factors to be considered motion, may af- own the court refer a suit of review. relаtionship fecting parent-child to medi- support in this case does not The order § 153.0071 ation.” Fam.Code guidelines set out in the Tex- conform to the added). (Vernon 1996) (emphasis We con- Code, presume Family and thus we cannot as legislature intended that clude that interest of the child. it is the best Tex “suits,” subject to manda- “disputes,” not 154.122(a). may § A court order tory mediation. in an support periodic payments child Family provides: The Code only guidelines from the amount which varies presumption that joint if the evidencе rebuts the rendering appointing order an in the best conservators, guidelines is application of the
managing the court shall: $2,396.87, monthly justifies net resources of the child and and Linda’s such 154.123(a). $1,917.39. monthly support § child variance. Tex. Fam.Code I do are Glenn’s (20% of obligation not it would be $479.37 believe does. $2,396.87), monthly support child Linda’s The five trial court listed reasons as (20% of obligation be $383.48 port for its decision to deviate from child $1,917.39), in Linda’s favor of for a difference support guidelines in section 154.125. I chal- 154.125(b). § See Tex. Fam.Code $95.89. lenge four of them. Maintaining house Glenn’s possession Amount of time of trial court third cited reason which trial first reason the court cited as not to award child support for its decision support for its decision not to child award maintain his house support is that Glenn will support appointed is that both were not rebut for MDS. This reason does joint managing conservators. This reason according to presumption support does not rebut the guidelines in the best interest would be according guidelines is in thе best the child. child. It fails in interest of the three re- First,
spects. Glenn The trial court did not order joint appointment managing [t]he con- nothing maintain house for MDS impair not servators does limit the au- selling prevents Glenn from it. Just because joint thority manag- of the court to order might lose it if he had to Glenn testified he ing pay conservator to child pay justification for child is no joint managing another conservator. ordering pay support. Glenn 153.137. Tex. Fam.Code majority’s opinion states that Glenn Second, although properly the trial court it, sells the not maintain house or does of possession considered the amount of time hardly That trial court can deal with it then. of MDS in accordance with section 154.123 responds to Linda’s should not —Glenn Family Code, the trial court overstated get against be able to credit during the amount of time which Glenn payment mortgage payment for for his his possession Including holidays of MDS. house. vacations, slightly Glenn was awarded parent’s Debt alone does excuse obli more time than the minimum amount of time Cole, pay gation support. See Cole v. possession in the standard for awarded order (Tex.App. 882 S.W.2d [14th —Houston is, possessory conservators. That denied). continuing By pay Dist.] writ ap- physical awarded house, creating equity ments on the Glenn is days month, proximately ten each benefit; also, Glenn that will inure to his can possession order calls mini- standard for a recapture money sell the house and days plus eight evening mum of six hours meantime, mortgage. In the used each month. See 153.312. go support pay Linda will without child Christmas, Thanksgiving, As to MDS’s birth- ments. day, Day, the almost and Father’s decree is provisions identical to the Code financial needs MDS’s material & possessory conservators. See Tex. Fam. Therefore, said 153.314. cannot be Code The fourth reason which court spends “substantial time” its not to cited as decision award *9 MDS. support is that both Linda Third, that and Glenn an will see all of MDS’s material finan- even (which reason does equal possession cial needs are met. This of time amount not), prеsumption support that support guide- rebut the accord- do under the Code, guidelines ing to the would be lines in 154.125 of the section The court’s stated required child interest the child. rea- still be merely aspiration; it monthly laudatory is no support. net resources are son is Glenn’s justification deny support according guidelines.
to the
Best interest of MDS
The fifth gave reason which the trial court its decision not to award child
support was that it was in the best interest of obligate
MDS to Again, laudatory aspiration;
him. this is a justify denying
does not support. Linda child parents already
Both of these have obli-
gations MDS. This reason does presumption
not rebut the ac-
cording guidelines to the would be the best
interest of the child. majority merely states that “it was
proper for the trial court to consider MDS’s dispute
best interest.” Linda does not
the trial court must consider what is in disputes best interest.
MDS’s She whether justification
this statement is itself a for de-
nying her child from Glenn. summary, Linda’s resources are 20%
lower than Glenn’s and she has
MDS for 68% of the time. The trial court’s
findings and the record do not rebut support according
guidelines would be in the best interest of
MDS.
I would reverse and remand to the trial rights
court to reconsider the issues of joint conservatorship
duties associated with support.
and child DEPARTMENT OF
TEXAS PUBLIC
SAFETY, Appellant,
v. DUGGIN, Appellee. Houston
John
No. 01-96-01055-CV. Texas, Appeals of
Court of (1st Dist.).
Houston 30, 1997.
Oct.
Rehearing Nov. Overruled