In the Interest of C.B.M.

14 S.W.3d 855, 2000 Tex. App. LEXIS 2575

• Court: Court of Appeals of Texas
• Decided: April 20, 2000
• Docket: No. 09-98-098 CV
• Status: Published

Opinions

OPINION

JOHN HILL, Justice (Assigned).

Joe Patrick Morgan appeals from the judgment in his voluntary paternity suit that he brought with respect to his child. He contends in seven points of error that: (1) the evidence is factually and legally insufficient to overcome the statutory presumption favoring the standard possession order once his son attained the age of three; (2) the evidence is factually and legally insufficient to support the trial court’s finding of good cause to pervasively restrict his constitutionally protected right to the formation of a meaningful relationship with his child; (3) the trial court erred in restricting visitation by failing to put the standard possession order into effect to govern visitation after his son became three years of age, absent a corresponding finding of parental unfitness based upon a threat of harm to the child’s welfare; (4) the trial court erred as a matter of law by failing to deduct the amount Morgan paid for health insurance coverage for his son from his net resources before calculating his child support obligation; (5) the trial court erred as a matter of law by failing to review the appellee’s available resources in its calculation of his child support obligation; (6) the trial court erred by refusing to grant a bill of exceptions to him on his motion for new trial where the witness’s testimony concerned his child-rearing abilities and maturation; and (7) the trial court erred because the evidence was factually and legally insufficient to show that bestowing the mother’s surname on the child to the complete exclusion of the father’s surname would “perennially be in the child’s best interests.”

We affirm because: (1) the trial court did not abuse its discretion in diverting from statutory guidelines for possession, in setting the amount of Morgan’s child support obligation, or in failing to give the child Morgan’s surname; and (2) the trial court did not err by failing to admit evidence at the hearing on Morgan’s motion for new trial or by failing to allow a bill of exceptions with respect to such evidence, absent any indication that the evidence was newly discovered evidence or evidence that would strongly show that the original custody order would have a seriously adverse effect on the interest and welfare of the child.

Morgan brought this suit to establish paternity rights with respect to his son. The child was born in December 1996. At the time of trial, the child was slightly more than one year old and is now slightly more than three years of age. After a trial to the court, the court declared Morgan to be the father of the child, appointed Erin Monroe, the child’s mother, as sole managing conservator, and appointed Morgan as possessory conservator. Finding that there was good cause for not entering a standard possession order, the court ordered that Morgan would have possession of the child at all times that he and Monroe mutually agreed upon in advance, and that, additionally, he would have visitation in the presence of Monroe for one hour on the first and third Monday of each month from 7:30 p.m. to 8:30 p.m. The order further provided that beginning at age three, Morgan would have possession of the child on the first and third Saturday of each month from 8:00 a.m. to 5:00 p.m. Finally, the order provided that once the child was six, Morgan would have possession of the child on the first, third, and fifth weekends of each month from Friday at 6:00 p.m. until Sunday at 6:00 p.m.

Morgan contends in points of error numbers one, two, and three that the trial court abused its discretion by deviating from the statutory guidelines for possession after the age of three, because the deviation was not supported by legally or factually sufficient evidence and because the trial court did not make a finding of parental unfitness based upon a threat of harm to the child’s welfare.

Statutory guidelines for possession of a child by a parent named as a possessory conservator are intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator. Tex. Fam.Code Ann. § 153.251(a) (Vernon 1996). The guidelines are designed to apply to a child three years of age or older. Id. § 153.251(d). Where the child is less than three, the court is to render an order appropriate under the circumstances for possession of the child and is to render a prospective order to take effect on the child’s third birthday, which presumptively will be the standard possession order. Tex. Fam.Code Ann. § 153.254 (Vernon 1996). In the instant case, the trial court’s order with respect to visitation at the time of trial, at the time the child turns three, and at the time the child turns six, is more restrictive than the standard possession order.

“We review the trial court’s findings of fact, as supported by the evidence in the record, to determine if the trial court abused its discretion in restricting visitation.... ” G.K v. K.A., 936 S.W.2d 70, 72 (Tex.App.—Austin 1996, writ denied). A trial court is given wide latitude in determining the best interest of the child in family law matters. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). The trial court abuses its discretion only when it acts in an unreasonable and arbitrary manner or without reference to any guiding principles. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). We will reverse the trial court’s judgment only if it appears from the record as a whole that the trial court has abused its discretion. See Gillespie, 644 S.W.2d at 451.

In a suit affecting the parent-child relationship, there is a rebuttable presumption that the standard possession order is in the best interest of the child and provides reasonable minimum possession of a child for a parent named as possessory conservator. Tex. Fam.Code Ann. § 153.252 (Vernon 1996). The court’s order is to “grant periods of possession of the child as similar as possible to those provided by the standard possession order if the work schedule or other special circumstances of the managing conservator, the possessory conservator, or the child, or the year-round school schedule of the child, make the standard order unworkable or inappropriate.” Tex. Fam.Code Ann. § 153.253 (Vernon 1996). In ordering terms of possession other than a standard possession order, the trial court shall be guided by the guidelines established by the standard possession order and may also consider: (1) the age, developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (3) any other relevant factor. Tex. Fam.Code Ann. § 153.256 (Vernon 1996).

In the final order, the trial court found good cause existed for not entering a standard possession order. In its findings of fact and conclusions of law, the trial court found that possession of the child by Morgan should be restricted because of the age of the child, the history of Morgan, the insufficiency of testimony about Morgan’s ability to care for the child, and lack of contact with the child up to the time of trial. Further, the trial court stated in its conclusions of law that good cause existed for not entering a standard possession order, that the rights of Morgan to the child should be limited, and that the limitations imposed were required to protect the best interest of the child.

Evidence was presented at trial showing that Morgan had never worked anywhere for any length of time; that he had some trouble in high school; that he had taken drugs some years ago; and that he had been arrested two years previously for public intoxication. He indicated that he went to Lamar University in Beaumont and stayed there two semesters. The child’s mother testified that Morgan did not do anything at the time she was pregnant to indicate a willingness to take responsibility for the child. She further testified that she did not feel that he was a responsible person based upon the things he had done in the past, his past decisions, lifestyle, and friends. She said he has a temper and starts things and then just quits. The mother’s father testified that when he visited with Morgan in the hospital about his relationship with his child he asked Morgan to come to his office to talk about it and Morgan never showed up. Morgan testified that he worked during the week, leaving home at 5:80 a.m. and not returning until 7:00 p.m. When asked how he would care for the child during the week, he did not seem to grasp the import of the question and answered that he could work something out. We hold that the trial court did not abuse its discretion in limiting visitation to an amount less than that provided for in the standard possession guidelines.

Relying on Tex. Fam.Code Ann. §§ 153.191,153.193 (Vernon 1996), Morgan argues that the trial court may not restrict his right of possession, as was done in the trial court’s order, without a showing of endangerment of the welfare of the child. Section 153.191 provides that a trial court is to appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child. Section 153.193 states that the “terms of an order that denies possession of a child to a parent or imposes restrictions or limitations on a parent’s right to possession of or access to a child may not exceed those that are required to protect the best interest of the child.” In this case the trial court met the requirements of these sections when it appointed Morgan possesso-ry conservator of the child and provided for visitation with the child. Morgan asserts that proof of endangerment is also necessary where there is an extreme curtailment of possession rights. He relies on Allison v. Allison, 660 S.W.2d 134 (Tex.App.—San Antonio 1983, no writ) and Liddell v. Liddell, 29 S.W.2d 868 (Tex.Civ.App.—San Antonio 1930, no writ). We find both to be distinguishable because both cases involved decrees that totally denied a parent access to a child. We can find no basis for Morgan’s argument that these cases have any application to the facts of this case with an order of possession such as that before this court.

Even if a trial court’s possession order could be so restrictive as to effectively deny access to a child and therefore require a showing of endangerment before it could be entered, we do not find that the trial court’s order in this case is so restrictive as to effectively deny Morgan’s access to the child, thereby restricting his right as a parent to a relationship with his child. We disagree with his conclusion that a finding of endangerment is necessary to support the trial court’s order.

Morgan, apparently relying on the trial court’s listing of the child’s age as one year of age in support of its order, argues that the trial court was improperly relying on the “tender years” doctrine in restricting his visitation with the child by not following the standard guidelines once the child became three years of age. At the time the trial court entered its order, the child was under three. Consequently, the standard guidelines had no application. See Tex. Fam.Code Ann. § 153.251(d) (Vernon 1996). We construe the trial court’s finding with respect to the child’s age as a justification for not following the guidelines at that age. We see nothing in the record to support Morgan’s presumption that the trial court was relying on the child’s age at three or above in support of a variance from the guidelines at that later time. Morgan argues that the trial court adopted the visitation desired by the child’s mother, but, even if that is true, it is no indication that the trial court adopted the “tender years” doctrine in arriving at its possession order.

Morgan insists that the trial court’s order violates his right to due process by interfering with his rights as a parent. While a parent’s rights are constitutionally protected, we know of no holding that an order of possession such as that here involves such an unjustified interference with that right as to be constitutionally prohibited. As otherwise noted, Morgan’s cases relate to instances in which a parent has been totally denied contact with the child.

Morgan also urges that the order is in violation of his rights under the Texas Equal Rights Amendment, Tex. Const, art. I, § 3a (Vernon 1997). His contention is based upon his presumption that the trial court applied the “tender years” doctrine in arriving at the possession order. We have previously discussed why we conclude that his presumption is without support in the record. We therefore hold that the order does not violate Morgan’s rights under the Texas Equal Rights Amendment. We overrule points of error numbers one, two, and three.

Morgan insists in point of error number four that the trial court erred as a matter of law by failing to deduct the amount he pays for his son’s health insurance coverage from his net resources before calculating his child support obligation. We also use the abuse of discretion standard in reviewing the amount of child support established by the court. See In Interest of Striegler, 915 S.W.2d 629, 637 (Tex.App.—Amarillo 1996, writ denied). In calculating net resources for the purpose of determining child support liability, the trial court is to deduct expenses for health insurance coverage for the obligor’s child from the obligor’s resources. Tex. Fam.Code Ann. § 154.062(d)(5) (Vernon 1996). The trial court ordered Morgan to pay child support in the amount of $318.11 per month, which includes $218.11 in child support plus additional amounts for retroactive child support and medical expenses incurred by the child’s mother in connection with the child’s birth. It appears that the trial court did not deduct any expenses for health insurance coverage in arriving at a figure for Morgan’s net resources. However, Morgan, although testifying at trial that he was providing insurance coverage for the child, did not testify as to the cost of that insurance. Further, he testified that he was agreeable to paying $218.11 in child support. Given the lack of evidence as to the amount Morgan was paying for the insurance, we hold that there would have been no evidence in support of any deduction. Additionally, Morgan waived any such error by his agreement to pay child support in the amount ordered. We overrule point of error number four.

Morgan insists in point of error number five that the trial court erred as a matter of law by failing to review the resources of the child’s mother in its calculation of his child support obligation. The trial court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines. Tex. Fam.Code Ann. § 154.123(a) (Vernon 1996). In determining whether the application of the guidelines would be unjust or inappropriate under the circumstances, the court is to consider evidence of all relevant factors, including the amount of the obligee’s net resources, including the earning potential of the obligee if the obligee is intentionally unemployed or underemployed. See id. § 154.128(b)(5). The evidence shows that the child’s mother was going to school at the time of the hearing and was receiving assistance from her parents. There is no evidence that she has any significant earning potential. Additionally, as we have noted earlier, Morgan testified at trial that he was in agreement with the amount of child support that the trial court ordered. We overrate point of error number five.

Morgan argues in point of error number six that the trial court erred by refusing to grant a bill of exceptions to Morgan on his motion for new trial where the witness’s testimony concerned his child rearing abilities and maturity. At the hearing on his motion for new trial, Morgan sought to introduce testimony from his aunt concerning his child-rearing abilities and maturity. The trial court refused to hear the testimony or allow a bill of exceptions. Morgan’s motion for new trial contained no allegation concerning newly discovered evidence, and Morgan makes no argument as to why the evidence would constitute newly discovered evidence. At the hearing on the motion, his counsel stated, with respect to the testimony that he wished to present, that Morgan’s character had changed in that he had a full-time job, even though he was only working thirty hours per week because he was in college; that he no longer used a lot of profanity; and that he had calmed down. Counsel indicated that Morgan’s aunt was present to testify and that she could tell the court about “how he is.” He further told the court that the aunt leaves her children with Morgan, who babysits them.

There was undisputed testimony at trial concerning Morgan’s employment, his attendance at Lamar University, and the fact that he babysat his nieces. There was also testimony at trial concerning Morgan’s emotional state, with respect to his having a temper. Generally speaking, a party may not present any additional evidence upon a motion for new trial, where that evidence is not newly discovered. See Hillert v. Melton, 64 S.W.2d 991, 992 (Tex.Civ.App.—San Antonio 1933, writ ref'd). In such a case, the trial court is not required to hear the evidence. Id.

However, in matters relating to child custody, it can be error to refuse to grant a motion for new trial, even though the evidence is not newly discovered, where there is an extreme case and the evidence is sufficiently strong. See C. v. C., 534 S.W.2d 359, 361-62 (Tex.Civ.App.—Dallas 1976, writ dism’d). However, no abuse of discretion is shown unless the evidence presented in support of the motion, and not offered at the original trial, strongly shows that the original custody order would have a seriously adverse effect on the interest and welfare of the children, and that presentation of such evidence at another trial would probably change the result. See id. at 362. In this case, the evidence that Morgan sought to present, as represented in his offer of proof, was cumulative of other evidence presented at trial with respect to Morgan’s employment, his university attendance, his temperament, and his babysitting duties. There was no suggestion of evidence of a character that would strongly show that the original custody order would have a seriously adverse effect on the interest and welfare of the child; therefore, there was no indication of such evidence that would probably change the result.

In C. v. C., evidence was presented at the motion for new trial hearing that showed the father, who was appointed managing conservator, was a man of violent temper who cruelly and harshly disciplined his children. Id. at 360-62. No evidence of this nature had been introduced at trial. Id. In contrast to the evidence raised at the motion for new trial in C. v. C., the nature of the evidence offered by Morgan in this case does not rise to the level of proof required by the court in C. v. C. for reasons that we have already set forth. We have previously noted that, in general, the trial court is not required to hear such evidence at the motion for new trial hearing where the offer of proof fails to show that it is newly discovered. We would hold that in custody cases the trial court is not required to hear evidence at the hearing on the motion for new trial where the offer of proof indicates that the evidence is not newly discovered and is not evidence of the character outlined in C. v. C. and the line of cases relying upon it. Where the evidence offered by Morgan showed on its face that it was neither newly discovered nor admissible under the exception set forth in C. v. C., there was no need for a bill of exceptions. Even if the trial court erred in not permitting Morgan to make a bill of exceptions, where, as here, the record is sufficient to apprise both the trial court and the appellate court of the nature of the evidence expected to be elicited, any error in refusing to allow a bill of exceptions is harmless. See Pennington v. Brock, 841 S.W.2d 127, 131 (Tex.App.—Houston [14th Dist.] 1992, no writ). We overrule point of error six.

Morgan asserts in point of error number seven that the trial court erred because the evidence was factually and legally insufficient to show that bestowing the mother’s surname on the child to the complete exclusion of the father’s surname would “perennially” be in the child’s best interest. We again apply the abuse of discretion standard. See G.K., 936 S.W.2d at 72. Morgan testified that it would be in the child’s best interest to have his surname because the child was his son. Monroe testified that she gave the child her surname because she was more responsible for the child than Morgan was at the time. She said that since the name was already the child’s established name, she did not see why it would not be in his best interest to keep the name he already had. She said that all of her family had taken care of the child for the first year of his life and that he is a part of her family. Her father expressed his opinion that it would be in the child’s best interest to keep the Monroe surname. We hold that the trial court did not abuse its discretion by failing to change the child’s name to Morgan. See id. at 73. We overrule point of error number seven.

The trial court’s “Final Order in Suit To Establish Parentage” is AFFIRMED.