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Affirmed and Memorandum Opinion filed November = 29,=20 2007.

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-07-00115-CV

____________

 

CARLA RUTH=20 CAIN,=20 Appellant

 

V.

 

ANTHONY=20 WILFRED CAIN, = Appellee

 

 

On Appeal from the = 25th District Court

Colorado County, = Texas

Trial Court Cause = No. 21,537

 

 

M E M O R=20 A N D U M   O P I N I O N

Appellant,=20 Carla Ruth Cain, appeals the trial court=3Ds=20 appointment of appellee, Anthony Wilfred Cain, as the joint = managing=20 conservator with the exclusive right to determine the primary = residency of=20 their two children, K.L.A.C. and L.B.C.  We affirm.[1]

<= SPAN=20 style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 150%; FONT-FAMILY: = Shruti">

Factual=20 and Procedural Background

The Cains=20 were married in 1995 and they had two children.  After eleven = years=20 of marriage, Anthony filed for divorce in March 2006.  In his = original petition for divorce, Anthony asserted that the parties = should be=20 appointed joint managing conservators and that the residence of = the=20 children should be limited to Colorado and surrounding = counties. =20 Carla eventually filed an amended counter-petition for divorce in = which=20 she asked the trial court to appoint both parents joint managing=20 conservators.  Carla also asked the trial court to appoint = her as the=20 managing conservator with the exclusive right to designate the = primary=20 residence of the children.  Beyond agreeing that both parents = should=20 be appointed joint managing conservators, the Cains could agree on = little=20 else, even after an effort to mediate the disputed = issues.

The trial=20 court held two hearings, the first of which was an evidentiary=20 hearing.  During that hearing, both Anthony and Carla=20 testified.  While most of the testimony focused on the = property=20 division and the issue of spousal maintenance, both Anthony and = Carla gave=20 testimony relevant to the issue of which parent should be = appointed the=20 managing conservator with the exclusive right to designate the = primary=20 residence of the children.

Anthony=20 testified first and he stated his belief that Carla has an anger=20 problem.  Anthony then testified, without objection, to = previous=20 incidents in which Carla broke doors off cabinets, tore a = telephone off=20 the wall, broke dishes, and scratched and slapped Anthony.  = Anthony=20 also testified Carla=3Ds anger=20 was so out of control during one incident that their daughters = fled the=20 house, ran to Anthony=3Ds=20 mother=3Ds house=20 and did not want to return home for three days. Anthony also = testified=20 that Carla, as part of a probation, was ordered by a court in = Austin to=20 take anger management.  Anthony testified he believes Carla=20 denigrates their daughters and has called one of them fat.  = Anthony=20 also recounted Carla=3Ds threat=20 to take their daughters to Oklahoma and then let him worry about=20 visitation.  Anthony also admitted that he and Carla had=20 disagreements over his consumption of alcohol in the presence of = the=20

children=20 as well as about the level of his family=3Ds=20 involvement in their family=3Ds=20 life.  Anthony testified that he did not have a problem with = the=20 court imposing a permanent injunction prohibiting him from = consuming=20 alcohol in the presence of his children as long as it was a mutual = prohibition.  As far as the children=3Ds=20 education, Anthony testified that he fully supported sending the = children=20 to private school.   Anthony also testified regarding = his income=20 and work schedule.  Anthony testified he earns between = $96,000 and=20 $100,000 annually.  According to Anthony, his job requires = that he=20 travel to the work location and that he works for five days and = then is=20 off for five days.  Finally, Anthony testified that he enjoys = being=20 with his children, and they enjoy being with him.

Carla=20 testified after her husband.  Carla denied having an anger = problem,=20 but she admitted to tearing the hinges off a cabinet door out of = anger at=20 Anthony.  She also admitted that she was out of control = during that=20 incident and that she was ordered by a court to take anger=20 management.  Carla denied she still has an anger problem but = admitted=20 she still gets angry at Anthony=3Ds=20 family.  Carla also testified about both her and = Anthony=3Ds=20 consumption of alcohol.  Carla stated that while she no = longer=20 consumes alcohol, in the past her consumption of alcohol possibly=20 interfered with her being a mother.  She also testified she = quit=20 drinking alcohol on several different occasions in the past.  = Carla=20 denied she has a drinking problem and stated she believes that = Anthony and=20 his family do have a problem.  Carla recounted an incident in = which=20 Anthony, after consuming alcohol, drove his family in a car at = speeds in=20 excess of 100 miles per hour.  Carla also recounted that she = has=20 called the police because she was in fear of Anthony=3Ds=20 anger.  Carla denied that she thinks one of her daughters is = fat or=20 that she has called her fat.  Carla also desired that the = children=20 continue attending private school for their education.  Carla = also=20 testified regarding her employment.  Since moving to = Washington=20 County, Carla had worked for Stewart & Stephenson, at a = chicken=20 restaurant, and she had also sold jewelry.  Carla testified = that she=20 had recently obtained a real estate license and hoped to be making = at=20 least $20,000 a year in the near

future. =20 Finally, Carla testified that she believed that the best interest = of the=20 children would be best served through a joint managing = conservatorship=20 with standard visitation orders even though Anthony=3Ds work=20 schedule would significantly interfere with his ability to spend = time with=20 his children under a standard visitation order.

At the end=20 of the first hearing, the trial court granted the divorce.  = It took=20 the issues of custody, visitation, support, and the division of = property=20 under advisement.

At the=20 second hearing, the trial court announced that the issues to be = resolved=20 that day included the right to establish residency, visitation, = child=20 support, and spousal support.  Carla=3Ds attorney=20 lodged no objection to that rendition of the issues to be = resolved. =20 When Carla=3Ds counsel=20 argued that Anthony and Carla had agreed that Carla would be the = managing=20 conservator with the exclusive right to designate the primary = residence of=20 the children, the trial court interrupted and stated AYou all=20 agreed to joint, managing conservatorship.  I don=3Dt think=20 there was any agreement as to who would establish = residency.@ =20 Carla=3Ds counsel=20 then conceded the trial court was correct.

At the=20 conclusion of the second hearing, the trial court appointed the = parents=20 joint managing conservators with Anthony having the exclusive = right to=20 designate the primary residence.  The trial court also = ordered that=20 Carla would pay child support based on minimum wage and that there = would=20 be no spousal support.

Discussion

In a=20 single issue on appeal, Carla contends the trial court abused its=20 discretion when it appointed Anthony the managing conservator with = the=20 exclusive right to designate the primary residence of the = children. =20 Within that issue, Carla makes two sub-arguments.  First, = Carla=20 contends the trial court abused its discretion because there was = legally=20 and factually insufficient evidence that it was in the best = interest of=20 the children for Anthony to be appointed the managing conservator = with the=20 exclusive right to designate the children=3Ds primary=20 residence.  Second, Carla argues the trial court abused its=20 discretion because Anthony=3Ds=20 pleadings do not support the relief granted by the trial = court.

A.     =20 Standard of Review

We review=20 a trial court=3Ds decision=20 on custody, control, possession, and visitation matters for abuse = of=20 discretion, and reverse the trial court=3Ds order=20 only if we determine, from reviewing the record as a whole, that = the trial=20 court abused its discretion.  Gillespie v. Gillespie, = 644=20 S.W.2d 449, 451 (Tex. 1982).  A trial court abuses its = discretion=20 only if it acts arbitrarily or unreasonably, without reference to = any=20 guiding rules or principles.  Owens-Corning Fiberglass = Corp. v.=20 Malone, 972 S.W.2d 35, 43 (Tex. 1998).  Under this = standard of=20 review, legal and factual sufficiency of the evidence, although = not=20 independent grounds for asserting error, are relevant factors in = assessing=20 whether the trial court abused its discretion.  Seidel v.=20 Seidel, 10 S.W.3d 365, 368 (Tex. App.CDallas=20 1999, no pet.).  In a legal sufficiency review, we view the = evidence=20 in a light favorable to the finding, crediting favorable evidence = if a=20 reasonable factfinder could, and disregarding contrary evidence = unless a=20 reasonable factfinder could not.  City of Keller v. = Wilson,=20 168 S.W.3d 802, 827 (Tex. 2005).  When reviewing the factual=20 sufficiency of the evidence, we examine all of the evidence and = set aside=20 a finding only if it is so contrary to the evidence as to be = clearly wrong=20 and unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex.=20 1986).  There is no abuse of discretion as long as some = evidence of a=20 substantive and probative character exists to support the trial=20 court=3Ds=20 decision.  In re T.L.J., 97 S.W.3d 257, 266 (Tex.=20 App.CHouston=20 [14th Dist.] 2002, no pet.).

 

 

 

 

B.     =20 Did the Trial Court Abuse Its Discretion When It Appointed Anthony = Managing Conservator With The Exclusive Right to Designate=20 Residency?

1.      =20 There is Legally and Factually Sufficient Evidence Supporting the = Trial=20 Court=3Ds=20 Decision

The best=20 interest of the child is the primary consideration in determining = issues=20 of conservatorship.  Tex. Fam. Code Ann. ' = 153.002=20 (Vernon 2002); In re V.L.K., 24 S.W.3d 338, 342 (Tex. = 2000). =20 Because the trial court faces the parties, observes their = demeanor, and=20 has an opportunity to evaluate the claims made by each parent, the = trial=20 court has wide latitude in determining the best interest. =20 Gillespie, 644 S.W.2d at 451; Martinez v. Molinar, = 953=20 S.W.2d 399, 403 (Tex. App.CEl Paso=20 1997, no writ).  When addressing conservatorship issues, = courts may=20 use the nonexhaustive list of Holley factors to determine = the=20 child=3Ds best=20 interest.  See Holley v. Adams, 544 S.W.2d 367,=20 371B72 (Tex.=20 1976); see also Vazquez v. Vazquez, --- S.W.3d ---, No.=20 14-05-01257-CV, 2007 WL 1745324 at *3 (Tex. App.CHouston=20 [14th Dist.] June 19, 2007, no pet.) (applying Holley = factors to=20 determine best interest in a conservatorship case).  The=20 Holley factors include: (1) the desires of the children; = (2) the=20 emotional and physical needs of the children now and in the = future; (3)=20 the emotional and physical danger to children now and in the = future; (4)=20 parental abilities of the individuals involved; (5) programs = available to=20 those individuals to promote the best interest of the children; = (6) plans=20 for the children by these individuals; (7) stability of the home = or=20 proposed placement; (8) acts or omissions of the parent which may = indicate=20 that the existing parent-child relationship is not proper; and (9) = any=20 excuse for the acts or omissions of the parent.  = Holley, 544=20 S.W.2d at 371B72.

The=20 evidence recounted above, when viewed in a light favorable to the = trial=20 court=3Ds=20 decision, is legally sufficient evidence to support the trial=20 court=3Ds=20 determination that appointing Anthony the managing conservator = with the=20 exclusive right to designate residency  was in the best = interest of=20 the Cain children.  In addition, after examining all of the = evidence,=20 the trial court=3Ds decision=20 is not so contrary to the evidence as to be clearly wrong and=20 unjust.  Because there was sufficient evidence supporting the = trial=20 court=3Ds=20 decision, we hold the trial court did not abuse its discretion = when it=20 appointed Anthony the managing conservator with the exclusive = right to=20 designate the residency of his children.  We overrule=20 Carla=3Ds first=20 sub-issue.

2.      =20 Anthony Did Not Agree Carla Should Be Appointed Managing = Conservator With=20 The Exclusive Right to Designate Residency

Within her=20 brief, Carla contends the evidence is insufficient, in part, = because=20 Anthony had agreed that Carla should be appointed managing = conservator=20 with the exclusive right to designate primary residency.  = Because the=20 record is bare of any such agreement, we disagree.

Rule 11 of=20 the Texas Rules of Civil Procedure provides that Ano=20 agreement between attorneys or parties touching any suit pending = will be=20 enforced unless it be in writing, signed and filed with the papers = as part=20 of the record, or unless it be made in open court and entered of=20 record.@ =20 Tex. R. Civ. P. = 11. =20 Because there is no written agreement regarding who would be = appointed the=20 managing conservator with the exclusive right to designate = residence to be=20 found in the record, and no agreement was made in open court and = entered=20 of record, this contention is without merit.=20  

3.      =20 The Trial Court Did Not Abuse Its Discretion By Granting Anthony = Relief He=20 Did Not Request in His Pleadings

Carla=20 contends the trial court abused its discretion because it granted = Anthony=20 relief he did not request in his pleadings.  In his original = petition=20 for divorce, Anthony asked the trial court to appoint both parents = joint=20 managing conservators and that it should limit  the residence = of the=20 children to Colorado and surrounding counties.  In = Carla=3Ds =20 amended counter-petition for divorce, she asked the trial court to = appoint=20 both parents joint managing conservators.  In addition, Carla = asked=20 the trial court to appoint her as the managing conservator with = the=20 exclusive right to designate the primary residence of the = children. =20 According to Carla, this state of the pleadings obligated the = trial court=20 to designate her as the managing conservator with the exclusive = right to=20 designate the primary residence of the children regardless of the = evidence=20 introduced during the trial.  We disagree with this=20 contention.

Rule 301=20 requires that a Ajudgment .=20 . . conform to the pleadings, the nature of the case proved and = the=20 verdict, if any, and shall be so framed as to give the party all = the=20 relief to which he may be entitled either in law or = equity.@ =20 Tex. R. Civ. P. = 301. =20 The trial court=3Ds judgment=20 in this case complies with this rule.   In child custody = cases,=20 the paramount concern for a court is the best interest of the = child;=20 therefore, pleadings are of little importance, and the trial=20 court=3Ds efforts=20 to exercise broad, equitable powers in determining what will be = best for=20 the future welfare of a child should not be hampered by narrow = technical=20 rulings.  In re B.M., 228 S.W.3d 462, 465 (Tex.=20 App.CDallas=20 2007, no pet.).  Once the parties have properly invoked a=20 court=3Ds=20 jurisdiction, the court is given wide discretion in the = proceedings and is=20 vested with decretal powers regarding all relevant custody, = control,=20 possession, and visitation matters involving the child.  = Id. =20 Here, Carla placed the issue of which party would be the = managing=20 conservator with the exclusive right to designate the primary = residence of=20 the children into the hands of the trial court when she included a = request=20 for that relief in her amended counter-petition for divorce.  = Once=20 Carla placed that issue before the trial court, the trial court = then had=20 the discretionary authority to designate the parent as the = managing=20 conservator with the exclusive right to designate the primary = residence of=20 the children  whom it believed would  serve the best = interest of=20 the Cain children.  To require otherwise would impermissibly = place=20 adherence to a technical rule of procedure above the best interest = of the=20 children.

In any=20 event, even if we were to decide that Carla=3Ds placing=20 this issue in her pleadings was insufficient to allow the trial = court to=20 select between the two parents, this issue was tried by = consent. =20 When issues not raised by the pleadings are tried by express or = implied=20 consent of the parties, they shall be treated in all respects as = if they=20 had been raised in the pleadings.  Tex. R. Civ. P. 67.  In order to = determine=20 whether an issue was tried by consent, a reviewing court must = examine the=20 record not for evidence of the issue, but rather for evidence of = trial of=20 the issue.  Halla v. Halla, No. 14-06-01126-CV, 2007 = WL=20 2367600, at *2 (Tex. App.CHouston=20 [14th Dist.] Aug. 21, 2007, no pet.) (mem. op.).  Consent may = be=20 found where evidence regarding a party=3Ds=20 unpleaded issue is developed under circumstances indicating both = parties=20 understood the issue was in the case, and the other party failed = to make=20 an appropriate complaint.  Id.

Here, the=20 Cains agreed they should be appointed joint managing conservators = of their=20 two children.  Therefore, the evidence recounted above in the = factual=20 background section of this opinion could only be relevant to the = issue of=20 which parent would best serve as the managing conservator with the = exclusive right to designate the primary residence of the children = and=20 serves as evidence that both parties understood this issue was in = the=20 case.  In addition, the fact Carla=3Ds counsel=20 asked Anthony the following question A[d]o you=20 think that there is any reason . . . that your wife should not be=20 appointed as the managing conservator who designates the primary = residence=20 of . . . your children?@ = serves as=20 additional evidence that the parties understood this issue was in = the case=20 and to be resolved by the trial court.  Finally, despite=20 Carla=3Ds=20 contention otherwise, there was no objection in the record to the = trial=20 court=3Ds=20 resolving the issue of which parent would be selected as the = managing=20 conservator with the exclusive right to designate the primary = residence of=20 the children.  Indeed, the record demonstrates that not only = did=20 Carla not object to the introduction of such evidence, but during = the=20 second hearing, she (1) agreed with the trial court that the issue = was one=20 of several to be resolved by the trial court; and (2) did not = lodge an=20 objection when the trial court included the right to establish = residency=20 on the list of issues to be resolved.[2] =20 Because the trial court did not abuse its discretion when it = appointed=20 Anthony the managing conservator with the exclusive right to = designate the=20 primary residence of the children, we overrule Carla=3Ds second=20 sub-issue.

Conclusion

Having overruled=20 appellant=3Ds only issue on = appeal, we=20 affirm the trial court=3Ds = judgment.

 

 

 

/s/     =20 John S. Anderson

Justice

 

 

 

 

Judgment=20 rendered and Memorandum Opinion filed November 29, = 2007.

Panel=20 consists of Chief Justice Hedges and Justices Anderson and=20 Seymore.

 

 


[1]  The court took = appellee=3Ds Motion to Supplement the Record With = Undisputed=20 Exparte Communication under consideration with the case.  We = granted=20 appellee=3Ds motion and considered the materials = addressed in=20 appellee=3Ds motion in the decision of this = case. =20

[2]  During the second hearing, the = following=20 exchange took place between the trial court and Carla=3Ds counsel:

The=20 Court:         You all = agreed to=20 joint, managing conservatorship.  I don=3Dt think there was any agreement as to = who would=20 establish residency.

Counsel:          = ; =20 Mr. Cain=3Ds proposed decreeB

The=20 Court:         His = proposed=20 decree, but right now that=3Ds only a proposed decree.  = That=3Ds still up to me, as far as = I=3Dm concerned.

Counsel:          = ; =20 Okay.  I=3Dm not saying B what I meant by Aagreed@ was their proposal and our proposal are = the=20 same.

The=20 Court:         Well, yeah, = but=20 once again, your clients have put their family in my = handsBthe future of their family.

Counsel:          = ; =20 = Correct.

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FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0023_01C832D1.9EDFF450--