in the Interest of S.C. and B.C., Children

• Court: Court of Appeals of Texas
• Decided: July 25, 2016
• Docket: 05-15-00873-CV
• Status: Published

Opinion

AFFIRMED; and Opinion Filed July 25, 2016.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00873-CV

IN THE INTEREST OF S.C. AND B.C., CHILDREN

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-52218-2012

MEMORANDUM OPINION Before Justices Myers, Stoddart, and Whitehill Opinion by Justice Stoddart

Father appeals the final divorce decree entered by the trial court. Mother and Father have

two minor children together, S.C. and B.C. In two issues, Father argues the trial court abused its

discretion by making an inequitable division of the community property and by granting Mother

the exclusive right to designate the children’s primary residence. We affirm the final divorce

decree.

FACTUAL BACKGROUND

Mother and Father are both doctors. Through an entity, Sree Medical PLLC, the parties

own an urgent care clinic in Plano that Mother operates. Father is an emergency room physician

who travels to different cities in Texas for work. He earns approximately $450,000 per year.

The parties own two houses near the urgent care clinic: one on Meadow Ridge Drive and the

other on Bexhill Drive. In the divorce decree, the trial court awarded the Meadow Ridge home to Mother and the Bexhill house to Father.

A. Urgent Care Clinic

Mother testified the parties started the urgent care clinic so that she could work near their

home and be the children’s primary caretaker. Mother explained that she works at the clinic

when patients come in and, when the clinic is not busy, she returns home to care for the children.

Although the clinic is not very profitable, Mother does not mind because “the kids need my

attention more.” She earns between $5,000 and $10,000 per month.

In his proposed property division, Father valued the clinic at $1 million. When asked

whether the clinic is worth $1 million, Mother answered “[n]o way.” She valued the clinic at

negative $70,000 because it has a $100,000 business line-of credit.

B. Care of the Children

Mother considers Father “neglectful” of the children. She testified that she takes the

children to their after-school activities and oversees their schooling because Father works more

hours and travels for his job. She stated: “it’s always me with the kids, and that’s the reason I

really couldn’t make as much money as he expects me to make.” When the children have been

with Father during the parties’ separation, the children contact Mother several times a week and

she takes them to and from school and their activities. If they need things such as school

supplies, she takes them shopping and then returns them to Father. However, when the children

are in Mother’s custody, Father does not contact them. Father disagreed that Mother takes care

of the children the majority of the time, but conceded she “sometimes” transports the children to

activities during his periods of possession.

A woman who works part time at the clinic testified that Mother is “always willing to

stop business to take [the children] to some school function or something.” She is very loving

and they get along very well. During Father’s custody periods, she observed that Mother does

–2– errands and other tasks for the children.

Father testified that the first time he and Mother separated, he arrived home from work at

approximately 9:00 p.m. and found the children at home alone because Mother moved out of the

house and left the children. At that time, the children were ten and twelve years’ old. Delmay

Matamoros, a woman who cleaned the parties’ house and provided babysitting services for many

years, testified that when the parties initially separated, Mother moved out of the Meadow Ridge

house for four or five months, and did not visit the children during that time. Matamoros and

Father cared for the children during these months. Matamoros testified that before the divorce

proceedings began, she, not Mother, took the children to their after-school activities, and Father

took the children to medical appointments. While Mother agreed that she moved out of the

Meadow Ridge house for several months when the parties separated the first time, she stated the

children visited her each day at the house where she was living.

C. Psychological Evaluations

Father testified he has seen changes in Mother’s behavior in the preceding years. He

testified that she is depressed, takes sleeping aids daily, “sleeps most of the time,” and has

become increasingly angry with the children. He found another person’s prescriptions for

hydrocodone and a muscle relaxant in Mother’s closet. Mother testified she does not have a

prescription drug addiction and the only medication she takes is for her thyroid. She has never

taken antidepressants, but has used diet pills prescribed by her to one of her coworkers.

Father believes Mother is paranoid and carries a knife because she thinks Father is trying

to kill her. She denied this allegation. Matamoros said that on one occasion she found a knife

under Mother’s pillow while she was making her bed. Mother does not believe she has paranoid

personality traits. While she suffered from situational depression after the parties separated, she

was no longer depressed at the time of trial.

–3– As part of the divorce proceedings, Mother and Father underwent psychological

evaluations. The evaluation concluded that Mother did not demonstrate any mental illness,

although the testing did “suggest the presence of . . . narcissistic personality disorder with

histrionic and obsessive compulsive traits and some paranoid features.” Father’s testing also

suggested the presence of obsessive compulsive personality disorder with histrionic and

narcissistic traits.

The psychologist interviewed the children as well. He noted that both parents related

well to the children, the children responded very positively to each parent, and the children

expressed no preference regarding with whom they wished to live.

The decree of divorce named the parents as joint managing conservators of S.C. and

B.C., but gave Mother the exclusive right to designate the children’s primary residence. The

decree also divided the parties’ community estate.

LAW & ANALYSIS

A. Standard of Review

We review a trial court’s judgment concerning conservatorship and division of property

for an abuse of discretion. See Gillespie v. Gillespie, 644 S.W.2d 449, 451(Tex. 1982)

(conservatorship); Reisler v. Reisler, 439 S.W.3d 615, 619 (Tex. App.—Dallas 2014, no pet.)

(division of property). A trial court’s primary consideration when determining conservatorship

of a child is the best interest of the child, and it has wide latitude when making that

determination. In Interest of J.R. III, No. 05-14-00338-CV, 2015 WL 4639625, at *5 (Tex.

App.—Dallas Aug. 5, 2015, no pet.) (citing TEX. FAM. CODE ANN. § 153.002 (West 2014)).

Likewise, the trial court is afforded broad discretion in dividing the community estate and an

appellate court must indulge every reasonable presumption in favor of the trial court’s proper

exercise of its discretion. Id.

–4– A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without any

references to guiding rules and principles. Gonzalez v. Gonzalez, 331 S.W.3d 864, 866 (Tex.

App.—Dallas 2011, no pet.). In family law cases, the abuse of discretion standard of review

overlaps with the traditional sufficiency standards of review; as a result, legal and factual

sufficiency are not independent grounds of reversible error, but instead constitute factors relevant

to our assessment of whether the trial court abused its discretion. Moroch v. Collins, 174 S.W.3d

849, 857 (Tex. App.—Dallas 2005, pet. denied). To determine whether the trial court abused its

discretion we consider whether the trial court (1) had sufficient evidence on which to exercise its

discretion and (2) erred in its exercise of that discretion. In re A.B.P., 291 S.W.3d 91, 95 (Tex.

App.—Dallas 2009, no pet.). We then proceed to determine whether, based on the elicited

evidence, the trial court made a reasonable decision. Id. An abuse of discretion generally does

not occur if some evidence of a substantive and probative character exists to support the trial

court’s decision. Id.

When the appellate record contains a complete reporter’s record, an appellate court

reviews the trial court’s findings of fact under the same standards for legal and factual

sufficiency that govern the review of jury findings. Reisler, 439 S.W.3d at 620. A legal

sufficiency challenge to the findings of fact fails if there is more than a scintilla of the evidence

to support the findings. Id. In a bench trial, the trial court acts as the fact finder and is the sole

judge of the credibility of the witnesses. Id.

In an appeal from a bench trial, an appellate court reviews a trial court’s conclusions of

law de novo and will uphold them on appeal if the judgment of divorce can be sustained on any

legal theory supported by the evidence. Id. at 619. An appellate court may not challenge a trial

court’s conclusions of law for factual sufficiency, but it may review the legal conclusions drawn

from the facts to determine their correctness. Id.

–5– B. Division of Property

In his first issue, Father argues the trial court made three errors when it divided the

parties’ community property, resulting in a division that is not just and right: (1) the trial court

incorrectly considered the business line-of-credit for Sree Medicals, PLLC as negative equity of

that property and as an additional line item under community debts, which artificially inflated the

community debt assigned to Mother; (2) the trial court improperly divided a TD Ameritrade

account ending in #9192 in the divorce decree because the parties partitioned it pursuant to a

Rule 11 Agreement; and (3) the trial court arbitrarily awarded the Meadow Ridge house to

Mother. In its findings of fact and conclusions of law, the trial court stated it considered the

following factors when arriving at a just and right division of the community estate: (1) the

spouse to whom conservatorship of the children is granted; (2) disparity of earning power of the

spouses; (3) community indebtedness and liabilities; (4) nature of the property involved in the

division; and (5) wasting of community assets. The parties agree that the trial court awarded

57.5 percent of the community assets to Mother and 42.5 percent to Father.

The trial court shall order a division of the parties’ estate in a manner that the trial court

deems just and right, having due regard for the rights of each party. TEX. FAM. CODE ANN. §

7.001; Reisler, 439 S.W.3d at 620. The property division need not be equal and the trial court

may consider many factors when exercising its broad discretion to divide the marital property.

Reisler, 439 S.W.3d at 620. Those factors include the nature of the marital property, the relative

earning capacity and business opportunities of the parties, the parties’ relative financial condition

and obligations, and the probable need for future support. Murff v. Murff, 615 S.W.2d 696, 699

(Tex. 1981). Mathematical precision in dividing property in a divorce is usually not possible.

Reisler, 439 S.W.3d at 620. The party complaining of the division of the community estate has

the burden of showing the trial court’s division of the community estate was so unjust and unfair

–6– as to constitute an abuse of discretion. Id.

1. Sree Medicals, PLLC

The trial court’s findings of fact place the value of Sree Medicals, the entity that owns the

urgent care clinic where Mother works, at negative $70,000. The valuation is supported by

Mother’s testimony.

The trial court’s findings of fact include a list of the parties’ community property and a

separate list of the community debts. The community property list shows a negative value for

Sree Medicals, which reflects the $100,000 business line-of-credit. The list of community debts

also includes the $100,000 line-of-credit, but the trial court noted the line-of-credit was

“included in value above.”

Father argues the trial court improperly assessed the Sree Medicals business line-of-credit

against Mother twice, which artificially increased Mother’s debt for purposes of the community

debt division. He asserts the valuation of Sree Medicals should be arrived at by offsetting any

value in the clinic against its $100,000 business line-of-credit, but the trial court improperly also

considered the $100,000 line-of-credit in its debts of the community. Thus, he believes the trial

court considered the line-of-credit twice. Father’s argument is not supported by the trial court’s

findings. The trial court’s findings of fact show the trial court assessed the business line-of-

credit only once. When considering the parties’ community debts, the trial court clearly

recognized that its valuation of Sree Medicals for negative $70,000 included the business line-of-

credit.

2. TD Ameritrade Account

Prior to the divorce, the parties had an account in Father’s name with TD Ameritrade.

While the divorce was pending, the parties entered into a Rule 11 Agreement to settle several

contested matters. The Rule 11 Agreement states in part: “The TD Ameritrade Acct [sic] ending

–7– 9192 shall be divided so that each party shall have temp [sic] use and possession of 50% of said

account.” The divorce decree awards $166,119 from the TD Ameritrade account ending in

#9192 to Mother. On appeal, Father asserts the Rule 11 Agreement partitioned the funds in the

#9192 account such that all remaining money became his separate property, and the trial court

erred by awarding money to Mother from the #9192 account.

There is evidence in the record to support the trial court’s conclusion that the Rule 11

Agreement did not partition the #9192 account as to create separate property. At trial, Mother

testified she believed the money in the account ending in #9192 was community property and the

division pursuant to the Rule 11 Agreement was for the purpose of providing her access to

money to pay legal fees while the divorce was pending and the division was not a partition of a

community asset into separate assets. Additionally, approximately eighteen months after the

Rule 11 Agreement was filed with the court, Father submitted his proposed division of assets to

the trial court, which listed the #9192 account as community property. He asked the trial court to

award the balance of the account to him. Mother’s and Father’s understanding that the #9192

account remained community property is also consistent with the terms of the Rule 11

Agreement, which stated the division was for the purpose of giving each party “temp [sic] use

and possession of 50% of said account.” Had the parties partitioned the account and created

separate property, neither party’s use would have been temporary.

Based on the evidence in the record, the trial court did not abuse its discretion by

concluding the money in the #9192 TD Ameritrade account was community property and

awarding a portion of the money to Mother.

3. Meadow Ridge Residence

Father argues the trial court’s division of the parties’ residences is against the

overwhelming evidence. The trial court awarded the Meadow Ridge house to Mother and the

–8– Bexhill house to Father. Father asserts he should have been awarded the Meadow Ridge house

and Mother should have been awarded the Bexhill house because the Bexhill house has a smaller

mortgage and Mother selected and purchased the Bexhill house without consulting him.

The Meadow Ridge house is larger than the Bexhill house and it is the home where the

children have lived. During the divorce proceedings, the children lived full time in the Meadow

Ridge house and Mother and Father moved in and out of the house for their periods of

possession. The children consider the Meadow Ridge house their home and Mother desires to

raise the children in that house until they go to college.

As discussed in more detail below, the trial court’s order gave Mother the right to

designate the children’s primary residence. The Meadow Ridge house was the children’s home

before Mother and Father separated and remained their home during the divorce proceedings.

Mother testified she could afford the costs associated with owning the Meadow Ridge home.

Thus, we conclude the trial court’s decision to award the Meadow Ridge house to Mother so that

the children can continue to live in the same house where they had been living is not an abuse of

discretion.

4. Conclusion

We conclude Father has not met his burden to show the trial court’s division of the

community estate was so unjust and unfair as to constitute an abuse of discretion. We overrule

Father’s first issue.

C. Children’s Primary Residence

In his second issue, Father argues the trial court erred by giving Mother the exclusive

right to designate the children’s primary residence. He asserts the evidence shows he should

have been given the exclusive right to designate their primary residence because Mother abuses

prescription drugs, left her children alone and did not return for several months, and attempted to

–9– alienate the children from Father.

The trial court heard evidence that Mother works at a clinic close to her house. She is

able to leave the clinic throughout the day to take care of the children. She testified she takes the

children to school and to their after-school activities most of the time, including times when the

children are in Father’s custody. Father works longer hours and must travel for his job, which

makes him less available to the children. Mother testified that when she moved out of the family

home when the parties separated for the first time, the children came to the house where she was

living each day.

Mother denied taking sleeping pills, prescription narcotics, antidepressants, or muscle

relaxants. She denied she is paranoid and sleeps with a knife under her pillow. Although

Mother’s psychological evaluation suggested the presence of narcissistic personality disorder

with histrionic and obsessive compulsive traits and some paranoid features, Father’s evaluation

also suggested the presence of obsessive compulsive personality disorder with histrionic and

Father disputed much of the evidence presented by Mother, including whether she is the

primary care taker, she takes prescription medications for psychological and psychiatric

problems, and she is paranoid. However, the trial court was in the best position to observe the

demeanor and personalities of Mother and Father and “feel the forces, powers, and influences

that cannot be discerned by merely reading the record.” In Interest of J.R. III, 2015 WL

4639625, at *5 (quoting In re T–––, 715 S.W.2d at 418). We defer to the trial court’s

determination. Further, the psychological evaluation shows that the children respond positively

to both parents and did not express a preference regarding with whom they wished to live.

Reviewing the record as a whole, there is some evidence of a substantive and probative

character to support the trial court’s decision. We conclude trial court did not abuse its

–10– discretion by giving Mother the exclusive right to determine the children’s primary residence.

We overrule Father’s second issue.

CONCLUSION

We affirm the trial court’s final decree of divorce.

/Craig Stoddart/ CRAIG STODDART JUSTICE

150873F.P05

–11– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF S.C. AND B.C., On Appeal from the 416th Judicial District CHILDREN Court, Collin County, Texas Trial Court Cause No. 416-52218-2012. No. 05-15-00873-CV Opinion delivered by Justice Stoddart. Justices Myers and Whitehill participating.

In accordance with this Court’s opinion of this date, the final decree of divorce of the trial court is AFFIRMED.

It is ORDERED that appellee Uma Chintapalli recover her costs of this appeal from appellant Chandra Chintapalli.

Judgment entered this 25th day of July, 2016.

–12–