Summary
finding no abuse of discretion when testimony conflicted because "we will not second-guess the trial court's evaluation of witness credibility or its resolution of conflicts in the testimony"
Summary of this case from Teerachai Supakorndej v. Shang XuOpinion
NO. 03-19-00196-CV
08-13-2020
Kaylee Jo Johnson, Appellant v. Shawn Michael Johnson, Appellee
FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-18-003881 , THE HONORABLE JAN SOIFER, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Kaylee Jo Johnson complains in six issues of the trial court's final decree of divorce awarding appellee Shawn Michael Johnson the right to determine the primary residence of their children "Eric," who was five at the time of trial in October 2018, and "Mae," who was four; awarding Kaylee possession under the Standard Possession Order, see Tex. Fam. Code § 153.312; and awarding Shawn the exclusive right to make certain decisions on behalf of the children. We will affirm the trial court's divorce decree.
We will refer to the parties by their first names and use pseudonyms for the children.
FACTUAL AND PROCEDURAL SUMMARY
Kaylee and Shawn married in September 2013. In 2018, Shawn filed for divorce. After holding a hearing in October 2018, the trial court signed its final decree of divorce in early 2019.
Shawn is a pediatric nurse, and Kaylee runs her own business making jewelry. Shawn and Kaylee separated about three years before trial but continued to live in the same house until shortly before the final hearing—Shawn moved into a bedroom upstairs and testified that the two parents had "very minimal interactions." By trial, Kaylee had moved into a nearby condominium owned by her parents, and Shawn stayed in the family home, which he had bought shortly before the couple married and which was awarded to him in the divorce.
Shawn testified that from the time Eric was born in April 2013 until January 2018, he worked an overnight shift from 7:00 p.m. to 7:00 a.m. Kaylee would work late into the night at the family's house, making jewelry while Shawn was at work, and Shawn said that when he got home, he would tend to Eric while Kaylee slept until about 9:00 or 10:00 a.m. Shawn would then sleep for about four hours and wake up to "resume duties with my son," "feeding, playing with him. I was pretty much just by myself with him." In January 2018, Shawn's work schedule changed to a three-shift work week, with twelve-hour shifts from 7:00 a.m. to 7:00 p.m. His responsibilities at home "were the same. I just had more time with them. I still—I took them to school, bathed them, put them to bed, fed them, especially on my off days." He further said he was "was doing all of the meals, all day. I was doing all the activities of daily life. Their hair—I cut my son's hair; I styled my daughter's hair. Everything." In July 2019, Shawn moved into a supervisory role with one in-office shift each week and the rest of his hours from home, "behind a computer." He said he now has "some flexibility and leeway" about when he wants to work. Kaylee sought to show that Shawn's new schedule was unpredictable from week to week, but Shawn stated that he had at least one week's notice of his weekly in-office shift.
Shawn testified that from the children's infancy, Kaylee worked "nonstop 60 to 80 hours a week. She was always either making jewelry, designing jewelry, or sending invoices" and would work until "4:00, 5:00 in the morning. Sometimes she did not sleep and she just stayed up for days." To support that assertion, Shawn introduced an email Kaylee sent him in July 2018, in which she asserted that she was "working 60 hours a week" in addition to taking care of the home and the children. He also introduced a copy of a social media post he made in October 2017 in which he praised Kaylee for "clocking 60+ hours a week."
Shawn was asked to describe Kaylee's interactions with the children, and he said, "There's a lot of yelling, frustration, threats of corporal punishment, timeouts." He said she "regularly" used corporal punishment and alleged that she "put dish washing liquid or hot sauce or apple cider vinegar in the children's mouths." Shawn testified that he decided to stop yelling after reading a study about how children respond to being yelled at, but that Kaylee "told me that she was not going to stop yelling; that she was going to do whatever she wanted to do." He also said he had a close, emotional bond to the children. In response to Kaylee's allegation that Shawn had used a belt on the children for punishment, Shawn said, "I had a—like, a cotton strand of material that—and I gave them one—one controlled spank with it. It actually hurt a lot less than my hand, so that was why I used it that time. But that was the only occasion that I've ever done that."
Shawn alleged that Kaylee had been emotionally abusive to him; that she cursed at him and called him names, sometimes in front of the children; and that she would continue to argue with him even when he asked her to pause until the children were not present. Shawn also testified that Kaylee had been physically abusive to him three times during the marriage: in September 2017, she lunged at his phone, scratching his arm in the process, and then punched him in the chest; in October 2017, after Kaylee "had been drinking heavily" and attempted to initiate sex, Shawn stopped because of her intoxication, and she "hopped out of the bed and she pushed" him, causing him to hit his head on a table, and "began to punch on [him] about a dozen or so times in the arms and chest"; and in March 2018, after both parents had been drinking, Kaylee "started to hit [Shawn] in the face with an open hand at first, and then her fist closed and she punched [him] in the face." Shawn denied that he had screamed at Kaylee or called her names during the last incident. In addition, Shawn produced texts between Kaylee and a friend in which Kaylee said, "I just hit Shawn in the face. And he's calling the cops so I'm probably going to jail tonight." Shawn also produced a photo of a broken laptop computer and explained that Kaylee had smashed the computer because she thought he had been lying to her. He produced copies of messages between him and Kaylee in which he said, "You punch and kick me. Then you destroy my personal items. You rage all the time." Kaylee responded, "You want to play games with me and I'm not having it dude[.] You wouldn't get out of my room!!!!! You do that on purpose." Shawn texted back to ask if that was why she broke the laptop, and she said, "You know I'll get to a point of rage and that's why you do it . . . . You wouldn't communicate with me before. And you lied again. That's why I broke your laptop."
Kaylee produced evidence that earlier in their marriage, Shawn had boasted about her online, expressing pride "about how she takes care of the family and cooks the meals and keeps the people in line and raises the children and how she's a good mother," and Shawn explained that he "maintained a persona just like she maintained a persona with her business, and we both fed off of each other that she was basically Superwoman and I was Superdad." He said that "our troubles in our marriage are well documented" and admitted that although he presented himself as a "wholesome Christian man," his blog posts were "for show" and the marriage was "very tumultuous" and "not a happy one."
Shawn also admitted to viewing pornography, which Kaylee characterized as an "addiction." He denied having an addiction and explained that he attended a six-week class or "support group for people with porn addiction" to show Kaylee that he "was working on it, that I wanted to be in good graces with my wife." Kaylee introduced into evidence a document from that class in which he wrote, "I've lied and cheated on my wife, defiled my marriage, and given into a sin that I have let run my life," and Shawn admitted that his use of pornography had "broken the trust" in the marriage and was the "chief reason" Kaylee said she did not trust him. Shawn denied having sexual contact outside the marriage and testified that Kaylee had equated his looking at pornography with being unfaithful and had told him he had "cheated on her with thousands of different women." He also testified that he believed Kaylee had been unfaithful, explaining that she had a miscarriage in July 2019 and that he did not believe the child could have been his because he had gotten a vasectomy more than a year before trial.
Shawn testified that he had concerns about Kaylee's alcohol consumption and asserted that she "would drink daily as she worked from home and cared for the children," producing several pages of messages between him and Kaylee that he said indicated she had been drinking. Shawn also testified that Kaylee took Adderall and that her demeanor had changed since she started taking it: "The anger and the agitation has become more of a problem. She gets easily frustrated. A lot of the incidents with the domestic violence have occurred while she was both prescribed Adderall and drinking." Shawn said that when he expressed concerns about her taking that medication while drinking, she told him that it was "none of my business," although at trial she agreed it was probably not a good idea to mix Adderall and alcohol. Finally, Shawn produced a text conversation that he said showed that Kaylee had on occasion bought Adderall from a friend rather than getting it through a doctor. Shawn admitted that he would drink between one and three alcoholic drinks per week after the children went to bed but insisted he did not drink as much as Kaylee. Shawn denied that his mother had provided him with prescription pain medication and that he had taken medications that were not prescribed to him. Shawn said Kaylee would be lying if she said differently and testified, "I had pain pills that were my prescription that my mom had that she gave to me."
Shawn said that when it was his time with the children, "they were completely mine. I did everything for them," and that when it was Kaylee's turn, she would set up playdates and take care of the children but "the children mostly tended to themselves while she worked." Shawn testified that he spent weekends entirely with the children while Kaylee usually worked and said that in the last two years, weekends were "just me and the kids" rather than the entire family together. Shawn disputed Kaylee's assertion that he had not participated in activities, vacations, and planning family vacations and activities.
Shawn testified that since separating, he and Kaylee were having difficulties co-parenting. The parties disputed who had canceled which appointments or activities for the children and whether proper notice had been given to the other parent. Shawn said that Kaylee had withheld the children's clothing and belongings, locking them in her room and forcing him to buy new sets for his periods of possession, and that Kaylee did not want to share the children's backpacks, lunchboxes, cups, or athletic equipment and instead wanted each parent to have a separate set. Kaylee agreed that she wanted separate sets of some of those items because she believed it made it easier to switch possession and asserted that both parties had gotten the children clothing that they used for their periods of possession.
There was testimony about one particular attempt to take the children to the dentist earlier in the summer before trial. Shawn said that he made dentist appointments for both children and gave Kaylee the information so that she could attend. However, he testified, "[h]er response was to make her own separate dentist appointments, told me to cancel mine." Shawn did as she asked, but when Kaylee was unable to attend the rescheduled appointments, Shawn took the children by himself. However, he testified, "She ended up telling us the wrong dentist office to go to. So we ended up going to, I think, four different dentist's office in Pflugerville till we finally found the right one." Further, when they arrived, "I found out that she didn't even check to see if they accepted our insurance, and so we were turned away." Kaylee disputed Shawn's version of the events but acknowledged that she had mistakenly given him the wrong name for the dentist's office.
Shawn testified that Kaylee had called the police three times since he filed for divorce, alleging the first time that he was stalking and harassing her and the other two times that he was "secreting" the children from her. The police did not make arrests in response to any of the calls. Shawn admitted that he installed video cameras in the family's home while Kaylee and the children were on vacation, but he insisted that they were not intended to be hidden or a secret from Kaylee, noting that they were large and easy to see. Shawn also said Kaylee knew about the cameras because he ordered them from their joint Amazon account and asked her when they would be arriving but acknowledged that he did not ask for her consent to install them in the house. Shawn explained that he installed the cameras for "protection" in case Kaylee called the police again to make false accusations against him. Shawn also testified that Kaylee had made disparaging remarks about him in front of the children.
While the case was pending, the parties had operated under a temporary order setting out a "2-2-5" possession schedule, and Shawn testified that the children had "adjusted remarkably well" but that the schedule required too many exchanges between him and Kaylee. He testified that he would prefer that Kaylee have visitation under the Standard Possession Schedule or, in the alternative, "a 50-50 schedule going forward." Shawn said that if the trial court ordered a 50-50 schedule, he had childcare lined up for his weekly in-office work shift. Shawn also testified that although Kaylee had told him that she had made $80,000 per year and had "represented to—that she's made 6-, $8,000 a month before," she claimed at a hearing on temporary orders that she was only making $1,200 a month. Shawn testified that he believed it was in the children's best interest for him to be their primary custodial parent because:
I'm a pediatric nurse taking care of children. It's my life. If I'm not taking care of my own kids, I'm taking care of someone else's kids just like they're my own.
The other thing would be my wife's abilities to kind of separate her ill feelings towards me and the decision making with the children. I mean, whether it comes from the, you know, separating and—getting separate backpacks and cleats and setting up appointments with counselors, canceling dentist appointments without me, I didn't feel like any of that stuff was within the best interest of the children. I felt it was more of a spite issue.
Also, I have the house, and I have every intention of raising my children in the house that they've grown up accustomed to.
And then also, lastly, just her financial situation. If we're to go by the numbers that she's provided the Court, I don't see how she can sustain raising our children—with her monthly income and with the way that her job and the amount of hours that she has to put in, I don't see how that provides any type of stability
for the kids.
Shawn introduced into evidence a number of text exchanges between the parties in which they had disputes over signing up the children for activities, whether the parties were using the other's food or household supplies, whether they had locked each other out the house, and whether Kaylee was withholding the children's clothes from Shawn. In one text, Kaylee said, "You act as though I'm the one ripping our family apart, but it's you. You're the monster here, I've just been forced to live with you." Finally, there was an exchange in which Kaylee texted Shawn to inform him Eric had choked Mae while they were playing. Shawn responded that he had not seen Eric "be physical like that with her before," although he had "noticed him picking on her and I told him he was being a bully and that it's not tolerated." The two discussed consequences, and Kaylee said she had "already reached out to his counselor at school for an appointment," recounted another incident in which Eric got upset and "started pounding his fists in the pillow and then screamed into it," said that the divorce was affecting Eric "pretty significantly," and said that Eric had also pushed Mae. When Shawn responded, "He hasn't exhibited any of this behavior with me. When is the appointment and when did you reach out to the counselor," Kaylee texted back:
You just said he had been. . . .but ok shawn. I know they never act up or disobey you. Congratulations. I emailed her today. Obviously its Sunday so I haven't heard back. I haven't taken parenting jabs at you, so don't start with your passive aggressive comments (that you can claim were innocent later). This is about [Eric].Shawn wrote back, "Hey, we're on the same team here. You're telling me about pushing, choking, and punching pillows. I haven't seen those behaviors. What I'm talking about is taking her toys when she puts then down, bragging about his day to her, stuff like that." Shawn then asked what Kaylee was hoping to get out of the appointment with the counselor, asked whether they could ask the school to monitor Eric's behavior, and said, "Could you please send me a screenshot of your email that you sent?" Kaylee refused, saying she was not "obligated to send you a copy of a private email I sent to the counselor."
Kaylee disputed much of Shawn's testimony. She testified that she took care of almost everything around the house because of Shawn's work and sleep schedule, saying that in the early days of the marriage, it was she and not Shawn who got the children ready in the morning, took Eric to preschool, picked him up in the afternoon, and took care of Mae through the day. Shawn would sleep until about 3:00 p.m., she said, at which point he would watch television and relax before leaving for work at about 6:00 p.m. Kaylee testified that Shawn had "little involvement with the kids" and that she would prepare dinner, sit and eat with the children, do bath time, and put them to bed. Kaylee said that on weekends or Shawn's days off, "he was a zombie" and it was "like he didn't hear the question" or hear the children talking to him, saying, "I don't know if—sleep deprivation or what, but he was not there."
Kaylee denied that she worked the long hours asserted by Shawn and insisted that she was engaged and hands-on with the children. Kaylee said that she started her jewelry business in November 2014, the same month Mae was born, and that she only worked between ten and fifteen hours a week for the first year, mostly in the evenings. After Mae started preschool, Kaylee started to work during the day, and she testified that she was still the parent who got the children ready for school, transported them to and from school, fed them, and put them to bed, at which point she would work late into the night. She testified that she was currently working about twenty or thirty hours a week except during holidays, when she would work forty or fifty hours a week.
Kaylee testified that she knew the marriage was in trouble when she was pregnant with Eric because Shawn showed "just an immense amount of disrespect for me as his partner." Kaylee admitted that she would "[s]ometimes" drink while she worked at night, saying she would drink three to four beers between about 9:00 p.m. and 2:00 a.m. She testified that she did not drink to excess; that her medications were prescribed, although she acknowledged obtaining them from a friend on the occasion noted in the text exchange produced by Shawn; and that she was attentive and patient with the children. She indicated that Shawn drank more than she did, testifying that when he drank, about three nights a week, on evenings when he did not have to work the next day, he would "stand[] in the kitchen taking shots" of whiskey. Kaylee disputed Shawn's version of the attempted dentist visit, agreeing that she had mistakenly given him the wrong name for the dentist office and testifying that the misunderstanding was not purposeful.
Kaylee agreed that she yells at the children but did not believe she yelled more than any other parent. She did not agree with Shawn's approach to never yell because "you're an authoritative figure, and sometimes . . . you need to set yourself up in front of them as such." She believed Shawn was "disengaged" with the children and "lax" with his style of discipline and said, "I don't think he knows what's going on half the time." Kaylee said that after the children spend time with Shawn, they are difficult to keep on their usual evening schedules and "just wild"—"it's like a battle for obedience." Kaylee agreed with Shawn that the existing custody schedule was not in the children's best interest because there were too many exchanges and because it was hard to give the children consistency. She thought the best schedule would be "to continue doing what we've been doing, and that would be normal school activities with me, bedtime with me, and weekends with dad. That's what they've—I mean, you break it down by hours of workweek, that's what we've been doing as a family."
Kaylee called five witnesses to testify on her behalf—Kameron Davis, a friend of Kaylee's for three or four years; Ashley Browne, Kaylee's friend and employee; Jana Townzen, Kaylee's friend for almost five years; and Kaylee's parents. Davis, Browne, and Townzen all testified that they generally saw Kaylee dropping the children off at school and picking them up after. They also said Kaylee was better with the children while Shawn was often disengaged or not even present. Davis testified that she heard Shawn curse at Kaylee, saying things like, "Crazy bitch, what the fuck, you know, like what's wrong with you, those kind of things of just the tone of being mad and frustrated about different things. . . . It would just kind of depend on the situation, but it was never a positive tone." Davis did not fear for the children's welfare directly but explained, "I just think when they're little—and, I mean, going back, if you think—three years—the ages of their kids, I think just the profanity, the tone, the anger, the frustration, how it would be projected and, like, Kaylee couldn't do anything right." She also said the couple's relationship was "toxic." Browne echoed Davis's testimony, saying that Shawn was usually sleeping during playdates and that Kaylee usually made lunch for the children and brought them "to birthday parties, playdates, things like—those things." Browne also testified that in the month and a half before trial, she had noticed that Eric seems angry and upset—"He loses his temper more quickly when he's around my kids. He doesn't want to interact or play as much as I feel like he did previously." She said Eric is "very aggressive with toys" and in how he responds to Browne's children. Kaylee's father testified that Kaylee was a patient, involved mother who did most of the caretaking and that although Shawn had the desire and "potential" to be a good father, he was rather inattentive when with the children. Kaylee's mother testified similarly, saying that Kaylee was the children's primary caretaker and that although Shawn loves the children, he had not been able to spend much time with them until his recent work change.
In their pleadings and filings with the court, each parent asked for the exclusive right to designate the children's primary residence and generally asked that all other parental rights and duties be exercised jointly and by agreement. In her pre-trial proposed disposition of the issues, Kaylee asked that Shawn be awarded possession under the Standard Possession Order and that in the event the parents could not reach an agreement with regard to "consent to medical, dental, and surgical treatments involving invasive procedures" and "consent to psychiatric and psychological treatment of the children," the children's doctors, dentists, or school counselors should "serve as the tiebreaker and shall provide his/her decision in writing" to both parties. In his proposed disposition, Shawn asked that Kaylee have possession and access "in accordance with the Standard Possession Order or, in the alternative, a week-on/week-off schedule year round," and that the other parental rights and duties set out in section 153.132 be exercised by him and Kaylee "jointly and subject to the agreement of the other conservator." See Tex. Fam. Code § 153.132.
At the conclusion of the hearing, the trial court ruled from the bench, "I do think that—under the circumstances, that the children should continue a 50/50 schedule. I do think that a week-on/week-off makes a lot more sense than the 2-2-5." It asked the parties to file letters "weighing in" on the issues in contention. In her post-trial letter, Kaylee asked to designate the children's primary residence and again asked the court to order that she and Shawn should jointly exercise their parental rights and duties by agreement with a "tiebreaker" provision. She also asked that the trial court "reconsider the 'week on/week off' schedule ordered at the close the parties' final hearing" and instead give Shawn possession under the Standard Possession Order. In his letter, Shawn asked to designate the children's primary residence, asked that he and Kaylee be ordered to exercise their parental rights and duties jointly and subject to each other's agreement, opposed Kaylee's proposed tiebreaker provision, and stated that the trial court "should abide by [its] ruling that the parties are to exercise 50-50 possession of the children based on a week on week off schedule." The final decree awarded Shawn the right to determine the children's primary residence; awarded Kaylee possession under the Standard Possession Order; and awarded Shawn the rights to consent to "medical dental, and surgical treatment involving invasive procedures," "psychiatric and psychological treatment of the children," marriage, and enlistment in the military and to "make decisions concerning the children's education" (hereinafter "Exclusive Decision-Making Rights").
On Kaylee's request, the trial court issued findings of fact, including finding that Kaylee: "has not consistently encouraged a positive co-parenting relationship" with Shawn; "physically assaulted [Shawn] multiple times during the marriage"; disparaged him in front of the children; "refused to cooperate with [Shawn] in scheduling medical appointments and attending parent teacher conferences"; tried to enroll the children in activities without Shawn's input or agreement; "involved the children in her disputes with [Shawn] and generally behaved in a hostile and aggressive manner" toward him; "did not communicate in a positive manner with [Shawn] or cooperated with [Shawn] in making decisions on behalf of the children, and there is a reasonable expectation that the parties will be unable to reach shared decisions regarding the children in the future"; works more hours per week than Shawn; and "will not encourage a positive relationship between the children and [Shawn] if she were to have more rights or more possession time than [Shawn]." The court also found that Shawn had "a superior ability to provide for the children's emotional and material needs"; that there were "discrepancies between reported income on [Kaylee's] tax returns and the income shown in her QuickBooks records"; and that although Kaylee reported $1,200 in monthly net resources in a document filed with the trial court, that assertion was "inconsistent with other evidence that she had a higher income." Kaylee filed motions for new trial and to modify the judgment, which the trial court denied.
DISCUSSION
Kaylee challenges the final decree in six issues, asserting that the trial court abused its discretion in awarding Shawn the Exclusive Decision-Making Rights and the right to determine the children's primary residence and in awarding Kaylee possession of the children according to the Standard Possession Order. Three of her issues relate to the technical rules governing pleadings and limitations on the relief a trial court may grant, and the other three issues challenge the sufficiency of the evidence supporting those three awards.
Issues Related to Rules of Pleading
We begin with Kaylee's first, second, and fourth issues, which involve the technical rules of pleading or the argument that Shawn waived any entitlement to the rights he was awarded.
Kaylee's first and second issues argue that the trial court erred in awarding Shawn the Exclusive Decision-Making Rights because (1) his pleadings did not request them, and (2) he did not ask for them in a proposed parenting plan required by the Travis County Local Rules. As Kaylee notes, the rules of civil procedure require a trial court's judgment to "conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity." Tex. R. Civ. P. 301. However, the supreme court stated decades ago, "Technical rules of practice and pleadings are of little importance in determining issues concerning the custody of children," Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967), and this and other courts of appeals have continued to apply that rule in the years since, see, e.g., In re Marriage of Christensen, 570 S.W.3d 933, 940 (Tex. App.—Texarkana 2019, no pet.) ("in cases affecting the parent/child relationship, when the best interest of the child is always the overriding consideration, technical rules of pleading and practice are of little importance, and fair notice is afforded when the pleadings generally invoke the court's jurisdiction over custody and control of the children" (quoting In re Macalik, 13 S.W.3d 43, 45 (Tex. App.—Texarkana 1999, no pet.))); Messier v. Messier, 389 S.W.3d 904, 907 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ("In child custody cases, where the best interests of the child are the paramount concern, technical pleading rules are of reduced significance."); Peterson v. Kirk, No. 03-02-00202-CV, 2002 WL 31833710, at *4 (Tex. App.—Austin Dec. 19, 2002, pet. denied) (mem. op.) ("The paramount concern in such cases is the best interest of the child, and the formalities of the procedural rules of pleading will not be used to defeat that interest.")
See also Philipp v. Texas Dep't of Family & Protective Servs., No. 03-11-00418-CV, 2012 WL 1149291, at *9 (Tex. App.—Austin Apr. 4, 2012, no pet.) (mem. op.) (in cases affecting parent-child relationship, child's best interest "is always the overriding consideration, [and] courts have overlooked technical rules of pleading and practice and found that fair notice is afforded when the pleadings generally invoke the court's jurisdiction over custody and control of a child").
Kaylee urges us not to apply the Leithold approach and instead cites to several cases in which our sister courts of appeals held that a parent's pleadings did not support the relief granted by the trial court. See, e.g., Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex. App.—Houston [14th Dist.] 2013, no pet.); In re A.B.H., 266 S.W.3d 596, 599-601 (Tex. App.—Fort Worth 2008, no pet.); Baltzer v. Medina, 240 S.W.3d 469 (Tex. App.—Houston [14th Dist.] 2007, no pet.); In re B.M., 228 S.W.3d 462 (Tex. App.—Dallas 2007, no pet.) However, there is an important distinction between this case and the cases Kaylee cites—each of those cases was an appeal from a trial court's modification of an order in a suit affecting a parent-child relationship (SAPCR), as opposed to an appeal from an original SAPCR order such as this, in which no final court order had already established the terms of custody and support.
See also King v. Lyons, 457 S.W.3d 122, 131 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ("in suits affecting the parent-child relationship, a trial court may not grant injunctive relief against a party unless that party had notice by way of the pleadings or the issue was tried by consent"; court's "foremost consideration is the best interest of the child"; and "in cases in which the injunctive relief sought or granted does not concern custody, control, possession, or visitation of a child, the party seeking such relief must show his entitlement to a permanent injunction as in any civil case").
As our sister court has noted, there is an important distinction between modification proceedings and original SAPCRs because a trial court is subject to different statutory requirements in rendering an original SAPCR order than in rendering a modification order. See Christensen, 570 S.W.3d at 940 & n.9. The family code defines "joint managing conservatorship" as "the sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the exclusive right to make certain decisions may be awarded to one party," Tex. Fam. Code § 101.016, thus contemplating that decision-making authority may be given to one parent exclusively. A trial court is required to make certain provisions in an original SAPCR order, including specifying "the rights and duties of a parent that are to be exercised" independently, by joint agreement, and exclusively by one parent. Id. § 153.071. In an original SAPCR, the trial court must also: designate which joint managing conservator has the exclusive right to determine the child's primary residence; address whether a geographic restriction is imposed; specify each parent's rights and duties regarding the child's physical care, support, and education; and "allocate between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent as provided by Chapter 151." Id. § 153.134(b).
In a modification proceeding, the trial court may only modify an order if the movant establishes both that the modification would be in the child's best interest and that the parties' circumstances have materially and substantially changed. Tex. Fam. Code § 156.101; see Rolle v. Hardy, 527 S.W.3d 405, 419 (Tex. App.—Houston [1st Dist.] 2017, no pet.). It therefore follows that in such a case, the movant must plead which specific provision he seeks to modify so as to allow the non-movant the opportunity to respond.
In In re Marriage of Christensen, the mother argued that the trial court erred in sua sponte imposing a geographic restriction on the child's residence when the father had not requested one in his divorce pleadings, citing to decisions from two other courts of appeals that had held, in the modification context, that "a mere request for change of conservatorship" was insufficient to authorize a geographic restriction. 570 S.W.3d 933, 939-40 & n.9 (Tex. App.—Texarkana 2019, no pet.) (citing Flowers v. Flowers, 407 S.W.3d 452, 457-58 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Gomez v. Rangel, No. 07-13-00070-CV, 2014 WL 4441379, at *5-6 (Tex. App.—Amarillo Sept. 8, 2014, no pet.) (mem. op.)).
Thus, as noted by our sister court, it follows that a general request for determination of conservatorship in an original SAPCR "necessarily imbues the trial court with discretion" to make the rulings required by the family code, see Christensen, 570 S.W.3d at 940 n.9, including addressing which parent should exercise which rights and duties, putting the children's best interest foremost in its consideration. We decline Kaylee's invitation to elevate the technical rules of pleading or Travis County's Local Rules above the trial court's statutory duties as set out in the family code. See Peterson, 2002 WL 31833710, at *4 ("The paramount concern in such cases is the best interest of the child, and the formalities of the procedural rules of pleading will not be used to defeat that interest.").
Kaylee also cites In re I.L., which started with a petition seeking termination of the mother's parental rights and in which the trial court ruled from the bench that the mother was appointed possessory conservator with no access but then decreed in its final written order that she was "'not' appointed possessory conservator." 580 S.W.3d 227, 233-34 (Tex. App.—San Antonio 2019, pet. dism'd). The mother appealed, complaining that she had received ineffective assistance of counsel because, in relevant part, her appointed attorney did not file a post-judgment motion complaining about that variance in the written order. Id. The court of appeals acknowledged the Leithold rule that the "'[t]echnical rules of practice and pleadings are of little importance in determining issues concerning' custody, control, and access to children" but noted that the trial court had done more than deprive the mother of custody, control, and access and had also deprived her "parental rights unrelated to access." Id. at 245 (quoting Leithold, 413 S.W.2d at 701). Because those parental rights "did not raise an issue concerning custody, control, and access," the court of appeals concluded that Leithold was not controlling and instead applied "the general rule that a trial court may not grant unrequested relief." Id. We do not believe that I.L. is applicable here, however, because the Executive Decision-Making Rights awarded to Shawn directly implicate issues of control and thus fall within the Leithold rule.
The In re I.L. court explained that "[t]he difference between possessory conservatorship with no access to a child and non-conservatorship are the parental rights in section 153.073 to receive information and confer with another parent about the child's health, education, and welfare," calling those rights "section 153.073 parental rights." 580 S.W.3d 227, 234 (Tex. App.—San Antonio 2019, pet. dism'd) (citing Tex. Fam. Code § 153.073). A possessory conservator with no right to access retains those rights, while "a parent who is not appointed a conservator has none of these rights." Id.
We also note that although Kaylee states the trial court's "'surprise' final judgment blindsided both parties" on the issue of the Executive Decision-Making Rights, she had drawn attention to two of those specific rights by asking for a "tiebreaker" provision in the event the parties could not agree on such decisions, with Shawn opposing her tiebreaker suggestion. It is difficult to see how Kaylee was "surprised" or "ambushed" by the trial court's addressing decision-making rights after she raised the likelihood of decision-making stalemates, even if the court's disposition did not match the relief she and Shawn had proposed.
The trial court was required to determine which rights and duties are to be exercised by each parent independently, by joint agreement, or exclusively by one parent. See Tex. Fam. Code §§ 153.071, .073, .134(b). The pleadings thus authorized the court to assess how the children's best interest would be served in the exercise of the Executive Decision-Making Rights. See Christensen, 570 S.W.3d at 940 & n.9; Peterson, 2002 WL 31833710, at *4; see also Cain v. Cain, No. 14-07-00114-CV, 2007 WL 4200638, at *4 (Tex. App.—Houston [14th Dist.] Nov. 29, 2007, no pet.) (mem. op.) (in child-custody cases, "the paramount concern for a court is the best interest of the child," "pleadings are of little importance, and the trial court's efforts to exercise broad, equitable powers in determining what will be best for the future welfare of a child should not be hampered by narrow technical rulings"; once the court's jurisdiction is invoked, it has "wide discretion in the proceedings and is vested with decretal powers regarding all relevant custody, control, possession, and visitation matters involving the child"). We overrule Kaylee's first and second issues.
In Kaylee's fourth issue, she argues that Shawn abandoned his request that Kaylee have possession under the Standard Possession Order by asking post-trial for the trial court to provide for possession on a week-on/week-off schedule.
Shawn's pre-trial proposed disposition of issues requested possession "in accordance with the Standard Possession Order or, in the alternative, a week-on/week-off schedule," and he testified to that effect at the final hearing. At the conclusion of the hearing, the trial court ruled from the bench that possession going forward should be on a week-on/week-off schedule, which it opined "makes a lot more sense than the 2-2-5," and Shawn stated in his post- trial letter that the trial court should abide by that ruling—a position Kaylee characterizes as "abandoning" his earlier request for possession under the Standard Possession Order. Kaylee, for her part, continued to advocate for the Standard Possession Order, asking the trial court to "reconsider the 'week on/week off' schedule ordered at the close of the parties' final hearing" and making a "final plea" that the court instead follow the Standard Possession Order. Kaylee referred to the statutory presumption that the Standard Possession Order is in the child's best interest and to the family code's requirement that a trial court shall render an order as similar as possible to the Standard Possession Order if the court determines that the standard order is "unworkable or inappropriate." See Tex. Fam. Code §§ 153.252, .253.
Having sought the Standard Possession Order in her own filings, Kaylee cannot now attack the trial court's order granting possession under that schedule, which was clearly an option raised by the parties' filings and favored by the statutes governing child-custody cases. Further, Shawn's post-trial "abandonment" of his earlier requests for the Standard Possession Order is not binding on the trial court. Instead, the trial court was required to assess the evidence and the parties' filings and determine what schedule will best serve the children, bearing in mind the rebuttable presumption in favor of the Standard Possession Order. See id. We overrule Kaylee's fourth issue.
Sufficiency of the Evidence
We now consider Kaylee's remaining issues, which attack the evidentiary basis for the trial court's rulings. In her third issue, she challenges the sufficiency of the evidence supporting the conclusion that it is in the children's best interest for Shawn to have the Exclusive Decision-Making Rights. In her fifth and sixth issues, she similarly challenges the evidence supporting giving her possession under the Standard Possession Order and the appointment of Shawn as the parent with the right to determine the children's primary residence.
It is the fact-finder's role to resolve evidentiary conflicts and determine the weight and credibility of witnesses. See Silverman v. Johnson, No. 03-08-00271-CV, 2009 WL 2902716, at *9 (Tex. App.—Austin Aug. 26, 2009, no pet.) (mem. op.); Lilley v. Lilley, 43 S.W.3d 703, 705 (Tex. App.—Austin 2001, no pet.). "A fact-finder's decision on conflicts in the evidence is generally viewed as conclusive." Lilley, 43 S.W.3d at 705-06. "In a case like this one where highly conflicting testimony is presented on almost every issue, the [fact-finder's] role cannot be overstated. This is particularly true in a custody dispute, as '[s]uits affecting the parent-child relationship are intensely fact driven.'" Silverman, 2009 WL 2902716, at *9 (quoting Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002)). "We give wide latitude to a trial court's decision on custody, control, possession, child support, and visitation, and will reverse the order only if it appears from the record as a whole that the trial court abused its discretion." In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). The trial court does not abuse its discretion simply by "decid[ing] an issue in a manner differently than an appellate court would under similar circumstances," and "[a]n abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision." Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied).
We first consider the evidence supporting the trial court's awarding Shawn Exclusive Decision-Making Rights. In her filings addressing the proposed disposition of issues, Kaylee asked that she and Shawn share most of the rights listed in section 153.073 but asked for a "tiebreaker" if the parents could not agree on issues related to invasive medical treatments or mental-health treatment. Shawn also stated he wanted to share with Kaylee most parental rights and duties but opposed Kaylee's proposal for tiebreakers. The parties' filings thus raised the specter of potential disagreement as to at least two specific types of decisions.
Although Kaylee is correct that there was no evidence that she lacks rational or logical thinking abilities or that she is unable to make decisions competently, see Garza v. Garza, 217 S.W.3d 538, 553-54 (Tex. App.—San Antonio 2006, no pet.), the trial court heard testimony about the parents' substantial difficulties in co-parenting, communicating with each other, and handling appointments for the children. The evidence included a text exchange in which Kaylee got angry when Shawn asked what she had told Eric's school counselor and another in which she told him to make his own parent-teacher conference appointment rather than the two of them attending together. In its findings of fact, the trial court determined that Kaylee had not "encouraged a positive co-parenting relationship" with Shawn, had physically assaulted him, disparaged him in front of the children, involved the children in her disputes with him, refused to cooperate in scheduling medical appointments and attending parent-teacher conferences, tried to enroll the children in activities without Shawn's input or agreement, acted in a hostile and aggressive manner toward him, and did not communicate positively or cooperate in making decisions for the children. It also found that there is "a reasonable expectation that the parties will be unable to reach shared decisions regarding the children in the future."
Although Kaylee produced witness testimony to contradict much of what Shawn said about her behavior and about the parties' respective parenting involvement and abilities, we will not second-guess the trial court's evaluation of witness credibility or its resolution of conflicts in the testimony. See Silverman, 2009 WL 2902716, at *9; J.R.D., 169 S.W.3d at 743; Lilley, 43 S.W.3d at 705-06. On this record, Kaylee has not shown the trial court abused its discretion in awarding Shawn the Exclusive Decision-Making Rights. See Zeifman, 212 S.W.3d at 587; J.R.D., 169 S.W.3d at 743. We overrule Kaylee's third issue.
In her fifth issue, Kaylee challenges the evidence supporting the trial court's granting her possession under the Standard Possession Order. She notes that the court verbally ruled that it would grant possession under a week-on/week-off schedule and argues that because the court changed its ruling post-trial, without having received additional evidence, there was no evidence that "should have encouraged" the court to change its ruling. Instead, she contends, the "revocation seemed punitive as it seemed to rely on the law cited in [Kaylee's] letter but reduced the amount of time the children would get to spend with their mother despite the fact that [Shawn's] letter" argued in favor of the bench ruling. However, as Kaylee noted in her post-trial letter, the family code imposes a rebuttable presumption that the Standard Possession Order is in the children's best interest. See Tex. Fam. Code § 153.252. And in reviewing a custody determination, "[w]e are not permitted to act, and will not act, as a second jury; accordingly, we do not pass upon the credibility of the witnesses or otherwise substitute our judgment for that of the jury." Silverman, 2009 WL 2902716, at *9 (quoting In re Rodriguez, 940 S.W.2d 265, 271 (Tex. App.—San Antonio 1997, writ denied)).
Kaylee argued in her post-trial letter that the evidence did not support a deviation from the Standard Possession Order, although she sought possession in her favor rather than Shawn's. The trial court found that Kaylee works more hours per week than Shawn; that Kaylee "will not encourage a positive relationship between the children and [Shawn] if she were to have more rights or more possession time than [Shawn]"; and that Shawn has "a superior ability to provide for the children's emotional and material needs." As noted earlier, we will not reevaluate the credibility of the witnesses or the weight to be given the evidence, see id.; J.R.D., 169 S.W.3d at 743; Lilley, 43 S.W.3d at 705-06, and our review is limited to ensuring that some evidence of a substantive and probative character exists to support the trial court's decision, see Zeifman, 212 S.W.3d at 587. Such evidence exists in this record, despite the trial court having initially ruled from the bench that it intended to impose a week-on/week-off schedule, and we have found no authority holding that a trial court cannot reconsider its initial bench rulings when evaluating the evidence post-hearing, particularly when reminded by the parties about the statutory presumption in favor of the Standard Possession Order. Cf. Tex. R. Civ. P. 329b(d) (trial court has plenary power for thirty days after signing judgment to vacate, modify, correct, or reform judgment). Kaylee has not shown that the trial court abused its discretion in awarding her possession under the Standard Possession Order. See Zeifman, 212 S.W.3d at 587; J.R.D., 169 S.W.3d at 743. We overrule Kaylee's fifth issue.
In Kaylee's sixth issue, she challenges the sufficiency of the evidence supporting Shawn's appointment as the parent with the right to designate the children's primary residence, another decision we review for an abuse of discretion. See Avila v. Avila, No. 03-05-00030-CV, 2006 WL 2986225, at *4 (Tex. App.—Austin Oct. 20, 2006, no pet.) (mem. op.). Kaylee notes that she presented testimony about factors such as Eric's progress in school, that she was the parent who most regularly cared for the children and helped them get ready for school, that she had reached out to Eric's counselor to discuss behavioral issues, and that she had a flexible work schedule. However, as noted above, the trial court found that Kaylee would not encourage a positive relationship between the children and Shawn if given more time with the children; that Shawn has a superior ability to meet the children's emotional and material needs; that Shawn had been awarded the family home, which was "the only home the children have known"; and that his plan to continue to live in the home "will promote stability for the children." The trial court also found that Shawn's employment was stable and allowed him to work from home a large portion of the time, while Kaylee worked longer hours than Shawn. The court noted its concerns about Kaylee's finances, finding that she "did not provide complete and accurate information regarding her income, and the information she provided was incomplete and conflicting"; that there were "discrepancies between reported income on [Kaylee's] tax returns and the income shown in her QuickBooks records"; and that her report of $1,200 in monthly net resources was "inconsistent with other evidence that she had a higher income." Leaving it to the trial court to evaluate the witnesses and resolve evidentiary conflicts, we conclude that the trial court had sufficient evidence on which to base its decision to allow Shawn to designate the children's primary residence. See Silverman, 2009 WL 2902716, at *9; Zeifman, 212 S.W.3d at 587; J.R.D., 169 S.W.3d at 743; Lilley, 43 S.W.3d at 705-06. We overrule Kaylee's sixth and final issue.
CONCLUSION
Having overruled all of Kaylee's issues on appeal, we affirm the trial court's final decree of divorce.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Triana and Smith Affirmed Filed: August 13, 2020