in the Interest of H.A.P. and B.D.P., Children

Court of Appeals of Texas

in the Interest of H.A.P. and B.D.P., Children

DecidedMarch 16, 2006

Docket11-05-00180-CV

StatusPublished

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in the Interest of H.A.P. and B.D.P., Children, (Tex. Ct. App. 2006).

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Opinion

Opinion filed March 16, 2006

Opinion filed March 16, 2006

In The

Eleventh Court of Appeals

____________

No. 11-05-00180-CV

__________

IN THE INTEREST OF H.A.P. AND B.D.P., CHILDREN

On Appeal from the 132nd District Court

Scurry County, Texas

Trial Court Cause No. 19,869

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

Reggie and Tammy Price are the parents of H.A.P and B.D.P. Reggie and Tammy were divorced in July 2000. In the agreed divorce decree, Reggie, Tammy, and Reggie=s parents Jesse and Diane Price were named joint managing conservators. Everyone agreed to the arrangement to safeguard the children from Reggie=s abuse of alcohol. The trial court specified in the divorce decree that Reggie was allowed to have possession of the children only when Reggie=s parents had possession of the children. The agreed divorce decree named Tammy as the conservator who had the right to establish the residence of the children. All parties lived in West Texas until January 2004, when Tammy moved to Austin.

In January 2005, Tammy filed a motion to modify the parent-child relationship seeking to remove the children=s grandparents as joint managing conservators. The grandparents cross-petitioned and filed a motion for contempt and enforcement against Tammy and a motion to modify in which they requested to be the managing conservators with the right to establish the children=s residence. The trial court denied the grandparents= petition and granted Tammy=s. The grandparents were removed as managing conservators. The trial court ordered that Reggie=s visitations be supervised by his parents. The trial court specified that the children=s visitation with Reggie would begin and end in Brownwood, that one of Reggie=s parents or a competent adult would be present when the children are picked up or dropped off for visitation, and that the visitation would be in the presence of Reggie=s parents or with their consent. We affirm.

On appeal, Reggie requests that this court vacate the trial court=s order requiring supervised visitation with his children and remand the case to the trial court to remove his parents from their supervisory role. In his brief, he argues that his parents are refusing to obey the order and that the order, as entered, is not enforceable because the order contains conflicting provisions.

A party asserting error on appeal bears the burden of showing that the record supports the contention raised and of specifying the place in the record where matters upon which he relies or of which he complains are shown. Sisters of Charity of the Incarnate Word, Houston, Texas v. Gobert, 992 S.W.2d 25, 31 (Tex. App.CHouston [1st Dist.] 1977, no pet.). If this burden is not met, the party waives the issue. Id. Tex. R. App. P. 38.1(h) requires that a brief Acontain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@ Reggie has not cited any part of the record which supports his contention; and, after reviewing the entire record, we found no evidence to support his argument. Although Reggie=s parents submitted a letter to this court, an appellate court cannot consider documents if they are not formally included in the record on appeal. Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App.CDallas 2005, no pet.). From the record, we know of no other proceeding that was held after Tammy=s motion to modify was granted. Reggie waived his sole issue.

Although Reggie failed to cite to the record as to his sole issue on appeal, we note that he did provide some argument, record references, and legal authority relevant to his contention that the trial court abused its discretion in entering its order requiring that Reggie=s parents be present during visitation with him.

The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002). A trial court=s order modifying a joint managing conservatorship will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles or whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985).

The public policy of this State is to ensure continuing contact with those parents A

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Opinion filed March 16, 2006

Opinion filed March 16, 2006

In The

Eleventh Court of Appeals

____________

No. 11-05-00180-CV

__________

IN THE INTEREST OF H.A.P. AND B.D.P., CHILDREN

On Appeal from the 132nd District Court

Scurry County, Texas

Trial Court Cause No. 19,869

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

Reggie and Tammy Price are the parents of H.A.P and B.D.P. Reggie and Tammy were divorced in July 2000. In the agreed divorce decree, Reggie, Tammy, and Reggie=s parents Jesse and Diane Price were named joint managing conservators. Everyone agreed to the arrangement to safeguard the children from Reggie=s abuse of alcohol. The trial court specified in the divorce decree that Reggie was allowed to have possession of the children only when Reggie=s parents had possession of the children. The agreed divorce decree named Tammy as the conservator who had the right to establish the residence of the children. All parties lived in West Texas until January 2004, when Tammy moved to Austin.

In January 2005, Tammy filed a motion to modify the parent-child relationship seeking to remove the children=s grandparents as joint managing conservators. The grandparents cross-petitioned and filed a motion for contempt and enforcement against Tammy and a motion to modify in which they requested to be the managing conservators with the right to establish the children=s residence. The trial court denied the grandparents= petition and granted Tammy=s. The grandparents were removed as managing conservators. The trial court ordered that Reggie=s visitations be supervised by his parents. The trial court specified that the children=s visitation with Reggie would begin and end in Brownwood, that one of Reggie=s parents or a competent adult would be present when the children are picked up or dropped off for visitation, and that the visitation would be in the presence of Reggie=s parents or with their consent. We affirm.

On appeal, Reggie requests that this court vacate the trial court=s order requiring supervised visitation with his children and remand the case to the trial court to remove his parents from their supervisory role. In his brief, he argues that his parents are refusing to obey the order and that the order, as entered, is not enforceable because the order contains conflicting provisions.

A party asserting error on appeal bears the burden of showing that the record supports the contention raised and of specifying the place in the record where matters upon which he relies or of which he complains are shown. Sisters of Charity of the Incarnate Word, Houston, Texas v. Gobert, 992 S.W.2d 25, 31 (Tex. App.CHouston [1st Dist.] 1977, no pet.). If this burden is not met, the party waives the issue. Id. Tex. R. App. P. 38.1(h) requires that a brief Acontain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@ Reggie has not cited any part of the record which supports his contention; and, after reviewing the entire record, we found no evidence to support his argument. Although Reggie=s parents submitted a letter to this court, an appellate court cannot consider documents if they are not formally included in the record on appeal. Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App.CDallas 2005, no pet.). From the record, we know of no other proceeding that was held after Tammy=s motion to modify was granted. Reggie waived his sole issue.

Although Reggie failed to cite to the record as to his sole issue on appeal, we note that he did provide some argument, record references, and legal authority relevant to his contention that the trial court abused its discretion in entering its order requiring that Reggie=s parents be present during visitation with him.

The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002). A trial court=s order modifying a joint managing conservatorship will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles or whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985).

The public policy of this State is to ensure continuing contact with those parents Awho have shown the ability to act in the best interest of the child.@ Tex. Fam. Code Ann. ' 153.001 (Vernon 2002). The trial court may place conditions on visitation if they are necessary for the best interest of the child. In re R.D.Y., 51 S.W.3d 314, 324 (Tex. App.CHouston [1st Dist.] 2001, pet. denied); Capello v. Capello, 922 S.W.2d 218, 220 (Tex. App.CSan Antonio 1996, no writ). Restrictions or limitations on a parent=s right to possession Amay not exceed those that are required to protect the best interest of the child.@ Tex. Fam. Code Ann. ' 153.193 (Vernon 2002). We note that the record contains neither findings of fact nor conclusions of law. Thus, it is implied that the trial court made all necessary findings of fact to support its judgment. In re A.D.H., 979 S.W.2d 445, 448 (Tex. App.CBeaumont 1998, no pet.); Thompson v. Thompson, 827 S.W.2d 563, 567 (Tex. App.CCorpus Christi 1992, writ denied).

At the hearing on the motion to modify, Reggie=s mother and Tammy both testified as to Reggie=s drinking problem. There is also evidence in the record that Reggie has been in and out of rehabilitation for alcohol abuse. The record shows that Reggie=s drinking problem was the paramount reason the grandparents were named joint managing conservators in the agreed divorce decree. We conclude that the trial court did not abuse its discretion by imposing the condition of supervision on Reggie=s possession of the children to ensure that he would not drive or visit with his children under the influence of alcohol. By imposing a less restrictive alternative than denying him possession altogether, the trial court=s order fosters the policy that the children have contact with both parents so long as it is in the children=s best interest.

The order of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

March 16, 2006

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

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