Affirmed and Memorandum Opinion filed October =
23,=20
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-06-00972-CV
____________
BRIAN K.=20
HEISKELL, =
Appellant
V.
KENNITH AND=20
SHERI KENDRICK, =
Appellees
On Appeal from the =
311th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2005-06801
M E M O R=20
A N D U M O P I N I O N
Brian=20
Heiskell appeals the custody award pursuant to a decree of divorce =
rendered in the matter of the marriage of Brian Heiskell and Misty =
Heiskell and in the interest of their minor children. The =
challenged=20
order appoints the maternal grandparents joint managing =
conservators of=20
the children. We affirm.
I. =20
BACKGROUND
Brian Heiskell =
(AFather@) and Misty Heiskell=20
(AMother@) were married on =
March 14,=20
1998. Two children were born of this marriage on September =
14, 1998=20
and June 18, 2001. The marriage was a turbulent one. =
Mother=20
made several allegations against Father of verbal and physical =
abuse=20
during the marriage. Father made similar allegations against =
Mother=20
and claimed that Mother was promiscuous. Mother =
and=20
Father separated in October 2003. Upon their separation, =
Mother and=20
Father voluntarily left the two children in the care of the =
maternal=20
grandparents, appellees, who reside in Sweetwater. Mother =
stayed in=20
Houston while Father moved to Harlingen. Thereafter, the =
children=20
returned to stay with Mother in Houston for approximately eight=20
months. The children have been in the constant care of =
appellees=20
since November 2004.
Mother filed for =
divorce in=20
February 2005, requesting that she be appointed sole managing =
conservator=20
of the children. Father filed his counter-petition two =
months later=20
and also requested to be appointed sole managing conservator of =
the=20
children. In December 2005, appellees filed an intervention =
alleging=20
that appointment of Father and Mother as joint managing =
conservators would=20
not be in the best interest of the children and requesting =
appointment as=20
joint managing conservators of the children. Following a =
bench trial=20
held on May 22, 2006, the district court appointed appellees joint =
managing conservators and Father and Mother possessory =
conservators with=20
corresponding periods of possession.
Father presents two =
issues for=20
review in this appeal. He argues that (1) appellees failed =
to prove=20
that his appointment as managing conservator would significantly =
impair=20
the children=3Ds physical health or =
emotional=20
development and (2) appellees failed to satisfy the higher =
standard of=20
proof required to rebut the parental presumption that appointment =
of=20
Father as managing conservator is in the best interest of the =
children. We=20
will address each issue in turn.
II. =20
ANALYSIS
A. =20
Standards of Review
When courts resolve =
questions=20
regarding conservatorship, the best interest of the child is the =
primary=20
consideration. Tex. Fam.=20
Code Ann. ' 153.002 (Vernon =
2002). =20
Moreover, the trial judge has wide latitude in determining best=20
interest. Gillespie v. Gillespie, 644 S.W.2d 449, 451 =
(Tex.=20
1982). Indeed, we cannot interfere with the trial =
court=3Ds ultimate decision =
unless we=20
conclude that it abused its discretion. In the Interest =
of=20
Doe, 917 S.W.2d 139, 141 (Tex. App.CAmarillo 1996, writ=20
denied). Generally, the test for abuse of discretion is =
whether the=20
trial court acted without reference to any guiding rules and =
principles or=20
whether the trial court acted arbitrarily and =
unreasonably. See=20
McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). =
Under an=20
abuse of discretion standard, legal and factual insufficiency are =
not=20
independent grounds of error, but rather are relevant factors in =
assessing=20
whether the trial court abused its discretion. In re =
T.J.L.,=20
97 S.W.3d 257, 266 (Tex. App.CHouston [14th Dist.] =
2002, no=20
pet.). 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 decision. =20
Id.
In a sufficiency =
review,=20
appellate courts apply a hybrid analysis because sufficiency of =
the=20
evidence and abuse of discretion standards of review often overlap =
in=20
family law cases. See In re D.S., 76 S.W.3d 512, 516 =
(Tex.=20
App.CHouston [14th Dist.] =
2002, no=20
pet). Within this overarching standard, we engage in a two-pronged =
inquiry=20
to determine whether the trial court (1) had sufficient =
information on=20
which to exercise its discretion and (2) erred in its application =
of=20
discretion. Zeifman v. Michels, 212 S.W.3d 582, 588 =
(Tex.=20
App.CAustin 2006, pet.=20
denied). The traditional sufficiency review comes into play =
with=20
regard to the first question, and those standards are discussed=20
below. See id. With regard to the second =
question, we=20
determine whether, based on the elicited evidence, the trial court =
made a=20
reasonable decision. Id. Thus, we resolve the =
second=20
question by determining whether the trial court=3Ds findings constitute =
an abuse=20
of discretion. The mere fact that a trial judge may decide a =
matter=20
within his discretion in a different manner than appellate judge =
in a=20
similar circumstance does not demonstrate that an abuse of =
discretion has=20
occurred. Whitworth v. Whitworth, 222 S.W.3d 616, 623 =
(Tex.=20
App.CHouston [1st Dist.] =
2007, no=20
pet.).
B. =20
Legal and Factual Sufficiency
In =
appellant=3Ds first issue, he =
argues that=20
the evidence presented at trial is not legally or factually =
sufficient to=20
support the trial court=3Ds decision to appoint =
appellees=20
joint managing conservators based on its implied finding that=20
Father=3Ds appointment would=20
significantly impair the physical health or emotional development =
of the=20
children. The=20
evidence is legally insufficient only if (1) the record discloses =
a=20
complete absence of evidence of a vital fact, (2) the court is =
barred by=20
rules of law or of evidence from giving weight to the only =
evidence=20
offered to prove a vital fact, (3) the evidence offered to prove a =
vital=20
fact is no more than a mere scintilla, or (4) the evidence =
establishes=20
conclusively the opposite of a vital fact. Uniroyal =
Goodrich Tire=20
Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In =
determining=20
whether there is legally sufficient evidence to support the trial =
court's=20
exercise of discretion, we consider evidence and inferences =
favorable to=20
the finding if a reasonable factfinder could, and disregard =
evidence=20
contrary to the finding unless a reasonable factfinder could =
not. =20
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); =
In Re=20
H.C. & S.C., 942 S.W.2d 661, 664 (Tex. App.CSan=20
Antonio 1997, no writ). In analyzing a challenge to the =
factual=20
sufficiency of the evidence, we examine the entire record to =
determine if=20
the trial court=3Ds finding=20
is so against the great weight and preponderance of the evidence =
as to be=20
manifestly unjust. See In re C.H., 89 S.W.3d 17, 25 =
(Tex.=20
2002); Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 752-53 =
(Tex.=20
App.CHouston=20
[14th Dist.] 2005, no pet.).
Next, in analyzing =
whether to=20
appoint a parent or nonparent as managing conservator, statute =
requires=20
the court to presume that appointing a biological parent is in the =
best=20
interest of the child. See Tex. Fam. Code Ann. =
' 153.131(a) (Vernon=20
2001). Consequently, this parental presumption imposes a =
heavy=20
burden on a non-parent seeking conservatorship. See =
Lewelling v.=20
Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). It is not =
adequate=20
to offer evidence that a nonparent would be a better custodian of =
the=20
child. Id. Still, this parental =
presumption is=20
rebuttable. For instance, proof that such an appointment =
would=20
significantly impair the child=3Ds physical health or =
emotional=20
development negates the parental presumption, as does a finding of =
a=20
history of family violence involving the parents of a child. =
See=20
Tex. Fam. Code =
Ann.=20
'' 153.131(a),=20
153.131(b),153.004(b) (Vernon 2001). =20
In the instant case, we must determine whether there was =
sufficient=20
evidence to support the trial court=3Ds implied=20
finding (1) that appointing Father as managing conservator would=20
significantly impair the children=3Ds physical=20
health or emotional development or (2) that there exists a history =
of=20
family violence involving the parents of the children. =20
See id.
1. =20
Impairment to Children=3Ds Physical=20
Health or Emotional Development Under Section=20
153.131
For the court to =
award managing=20
conservatorship to a nonparent under section 153.131, the =
nonparent must=20
prove by a preponderance of credible evidence that appointing the =
parent=20
as a managing conservator would result in serious physical or =
emotional=20
harm to the child. Whitworth, 222 S.W.3d at =
623. There=20
must be evidence to support the logical inference that some =
specific,=20
identifiable behavior or conduct of the parent will probably cause =
that=20
harm. Id. In essence, section 153.131 presumes =
that the=20
best interests of a child is served when a biological parent is =
appointed=20
managing conservator unless there is evidence that the biological =
parent=20
has engaged in specific acts that would impair the =
child=3Ds physical health or =
emotional=20
development.
Father alleges that =
there is=20
insufficient evidence to support the implied finding that his =
appointment=20
as managing conservator would impair the children=3Ds physical health or =
emotional=20
development. Specifically, =
he argues=20
that the evidence presented at trial was insufficient to rebut the =
parental presumption under section 153.131. In support of =
his=20
argument, Father cites excerpts from the testimony at the divorce=20
proceeding to the effect that (1) he was never convicted of a =
crime=20
involving family violence; (2) he removed himself from a volatile=20
situation with Mother and began counseling to deal with his =
violent=20
outbursts; (3) he has not been involved in any physical =
altercation since=20
June 2004; (4) he has maintained health insurance on the children; =
(5) he=20
has exercised possession and access to the children during =
the=20
pendency of the divorce; and (6) he has made some child support =
payments=20
to Mother and appellees. Relying on=20
May v. May, 829 S.W.2d 373, 377-78 (Tex. App.CCorpus=20
Christi 1992, writ denied), Father contends that the material time =
concerning fitness for child custody is the present, not the past; =
the=20
fact that the parent would not have been a proper custodian =
sometime in=20
the past is not controlling.
Though highly =
disputed by=20
Father, there is evidence that awarding Father managing =
conservatorship=20
would significantly impair the children=3Ds physical health or =
emotional=20
development. Specifically, there is evidence that Father =
physically=20
attacked Mother on a number of occasions, one of which transpired =
while=20
the daughter was in harm=3Ds way. Father =
made only=20
sporadic visits to the children following the separation (ten =
visits over=20
two years and seven months) and has failed to provide adequate =
financial=20
support for the children. Additionally, Mother and appellees =
testified that the son has exhibited violent behavior towards his =
sister,=20
Mother, and appellees, indicating that such violence was =
acceptable=20
because ADaddy did =
it.@ The violent =
behavior=20
diminished after the child was placed in the care of =
appellees. =20
There is evidence that Father accepted money from a man in =
consideration=20
for his wife=3Ds Acompanionship.@ See =
Whitworth,=20
222 S.W.3d at 623 (stating that an adult=3Ds future conduct may =
be=20
somewhat determined by recent past conduct.). =
An abuse of =
discretion does not=20
occur as long as some evidence of a substantive and probative =
character=20
exists to support the trial court=3Ds decision. =20
Id. We find=20
that there is sufficient evidence to support the trial =
court=3Ds implied=20
finding that appointing Father as managing conservator would =
significantly=20
impair the children=3Ds physical=20
health or emotional development.
2. =20
Finding of a History of Family Violence Under Sections 153.131(b) =
and=20
153.004(b)
A finding of a =
history of=20
family violence also rebuts the section 153.131 parental =
presumption that=20
the appointment of a parent as the sole managing conservator of a =
child or=20
as the conservator who has the exclusive right to determine the =
primary=20
residence of a child is in the best interest of the child. =20
See Tex. Fam. Code Ann. =
' 153.131(b). =
The=20
presumption is rebutted if sufficient evidence is presented =
showing a=20
history or pattern of past or present child neglect, or physical =
abuse by=20
that parent directed against the other parent, a spouse or a =
child. =20
Tex. Fam. Code =
Ann.=20
' 153.004(b). =
In the instant case, =
there is=20
sufficient evidence to support a finding of a history of family=20
violence. See Tex.=20
Fam. Code Ann. ' 71.004 (Vernon 2002) =
(family=20
violence is an act by a member of a family against another member =
of the=20
family that is intended to result in physical harm, bodily injury, =
assault=20
or that is a threat that reasonably places the member in fear of =
imminent=20
physical harm, bodily injury or assault). There was =
testimony that=20
Father physically attacked Mother on a number of occasions during =
the=20
marriage. One such attack led to a thirty-day deferred =
adjudication=20
of guilt and a magistrate order for emergency protection against=20
Father. At least one of the physical altercations occurred =
while the=20
daughter was endangered. It is undisputed by Father that he =
made an=20
oral threat to beat his wife to death. All of these =
incidents=20
occurred within two years of the divorce action. See =
Tex. Fam. Code Ann. =
' 153.004 (in =
determining=20
whether to appoint a party a managing conservator, the court shall =
consider evidence of the intentional use of abusive physical force =
by a=20
party against the party=3Ds spouse committed =
within a=20
two-year period preceding the filing of the suit). =
There is=20
sufficient evidence to support the trial court=3Ds implied=20
finding of a history of family violence to rebut the parental=20
presumption.
Considering the =
evidence and=20
inferences in favor of the finding, we find the evidence to be =
legally=20
sufficient to support the trial court=3Ds decision. =
Additionally,=20
we find that the evidence is not so against the great weight and=20
preponderance of the evidence to be manifestly unjust. We find =
that (1)=20
there is sufficient evidence that Father=3Ds appointment as =
managing=20
conservator would significantly impair the children=3Ds physical health or =
emotional=20
development and (2) there is sufficient evidence to support the=20
court=3Ds implied finding of =
a history=20
of family violence involving the parents and the children. =
This=20
evidence negates the parental presumption. Under the =
applicable=20
standard of review, we find the evidence is legally and factually=20
sufficient to support the trial court=3Ds decision. We =
overrule=20
Father=3Ds first issue. =20
C. =20
Best Interest Test
In Father=3Ds second issue, he =
contends=20
that the trial court abused its discretion in finding that =
appellees=20
successfully rebutted the presumption that his appointment as =
managing=20
conservator was in the best interests of the children. =
Specifically,=20
he argues that appellees failed to meet the Ahigher =
standard@ of proof required to =
rebut the=20
parental presumption.
In 1995, the Texas Legislature =
substantially=20
revised to the Texas Family Code regarding the parental =
presumption and=20
family violence in custody cases. Father argues that when a=20
non-parent is appointed managing conservator, the court must apply =
a=20
higher standard to determine the best interests of the =
child. He=20
attempts to support his contention that the standard Abest interests@ test is inappropriate in this case =
based on=20
Brooks v. Brooks, 881 S.W.2d 297, 298 (Tex. 1994). He =
argues=20
that Brooks imposes a higher level of analysis under =
section 14.07=20
in cases awarding custody to a nonparent. We note that =
section 14.07=20
was repealed in 1995. Act of May 10, =
1991, 72nd=20
Leg., R.S., ch. 161, ' 3, 1991 Tex. Gen. =
Laws 771,=20
repealed and recodified by Act of April 6, 1995, 74th Leg., =
R.S.,=20
ch. 20, 1995 Tex. Gen. Laws 113. Even under the former section 14.07, the =
higher=20
standard outlined in Brooks is essentially the current =
parental=20
presumption under the new section 153.131(a). See =
Brooks, 881=20
S.W.2d at 298 (holding that before appointing a non-parent sole=20
conservatorship, there must be proof that Aappointment of the parent would =
significantly=20
impair the child=3Ds health or emotional =
development@). It is undisputed that statute =
requires=20
primary consideration of the best interest of the child in =
determining the=20
issues of conservatorship and possession of and access to the =
child. =20
See Tex. Fam. =
Code=20
Ann. ' 153.002. There is no authority =
imposing a=20
different test or higher standard to be applied to a custody case =
awarding=20
non-parents sole managing conservatorship and biological parents=20
possessory conservatorship. We hold that the trial court did =
not=20
abuse its discretion in finding that appointment of appellees as =
managing=20
conservators is in the best interest of the children. We overrule=20
Father=3Ds final issue.
We affirm the judgment of the trial=20
court.
/s/ =20
Adele Hedges
Chief Justice
Judgment rendered and =
Memorandum Opinion filed October 23, 2007.
Panel consists of =
Chief Justice=20
Hedges and Justices Frost and Guzman.
Do Not=20
Publish C =
Tex. R. App. P.=20
47.2(b).
The record does not contain an =
explicit=20
affirmative finding by the trial court that (1) appointment of =
Father as=20
managing conservator would significantly impair the =
children=3Ds physical health or emotional =
development or (2)=20
there exists a history of family violence. We do note, =
however, that=20
the trial court made an oral finding during the divorce trial that =
Aall Family Code requirements for the =
Court to make=20
t[he conservatorship] appointments have been satisfied by the =
evidence=20
presented in the course of this trial.@ The final decree of divorce also =
states=20
AThe Court finds that all requirements of =
the=20
Family Code, necessary to award custody of the children to =
Intervenors,=20
have been met.@
Mother testified at =
trial that=20
Father Apimped@ her out to a Mr. Ward. Mother =
indicated=20
that Mr. Ward and Father met in person and made an agreement =
wherein for=20
Mr. Ward=3Ds payment of $15,000, Father would allow =
Mr. Ward=20
to spend time with Mother while Mr. Ward=3Ds wife was out of town. Father testified =
that he=20
took the money from Mr. Ward because it was Aeasy money,@ but denied that he entered into such an =
agreement=20
to prostitute his=20
wife. |