in the Matter if the Marriage of Amanda Dodd Bonner and Robert Bonner and in the Interest of M.A.B. and N.C.B., Children

• Court: Court of Appeals of Texas
• Decided: November 3, 2010
• Docket: 10-10-00011-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00011-CV

IN THE MATTER IF THE MARRIAGE OF AMANDA DODD BONNER AND ROBERT BONNER AND IN THE INTEREST OF M.A.B. AND N.C.B., CHILDREN

From the 413th District Court Johnson County, Texas Trial Court No. D200705574

MEMORANDUM OPINION

Robert Walter Bonner appeals from a final decree of divorce entered against him

by default which ordered that he is to have no possession or access to his minor

children, M.A.B. and N.C.B., because of a felony conviction for “sexual, physical and

emotional abuse of the children the subject of this suit” and that named him a

possessory conservator of the children. Bonner complains that the trial court abused its

discretion by denying him access to the children, by erroneously stating that M.A.B. and

N.C.B. were involved in his felony conviction, and by not naming him a joint managing conservator. Because we find no reversible error, we affirm the judgment of the trial

court.

Bonner’s issues are interrelated and therefore we will discuss them jointly and

out of order as necessary.

Sole or Joint Managing Conservator

In his third issue, Bonner complains that the trial court abused its discretion by

naming his wife as the sole managing conservator of the children and that they should

have been named as joint managing conservators of the children.

Possession and Access

In his first issue, Bonner complains that the trial court abused its discretion by

entering an order that he was to have no access to his children because there was no

evidence to support the trial court’s finding that he had been convicted and

incarcerated for sexual, physical, and emotional abuse of M.A.B. and N.C.B.

Erroneous Finding in Judgment

In his second issue, Bonner complains that the trial court erred by including a

finding that his children, M.A.B. and N.C.B. were “involved” in the felony offenses in a

specific cause number, and therefore, the evidence was legally and factually insufficient

for the trial court to have determined that he should have been denied possession and

access pursuant to the standard possession order in subchapter F of chapter 153 of the

Family Code. See TEX. FAM. CODE ANN. §§ 153.301, supra (Vernon Supp. 2010).

In the Matter of the Marriage of Bonner Page 2 Abuse of Discretion

The trial court has broad latitude in determinations regarding custody,

possession, and access of minor children and we will not reverse the judgment of the

trial court unless it appears from the record as a whole that the court has abused its

discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). In family law cases the

abuse of discretion standard overlaps with the traditional sufficiency standards of

review. Garza v. Garza, 217 S.W.3d 538, 549 (Tex. App.—San Antonio 2006, no pet.).

Legal and factual sufficiency are therefore not independent grounds of error; rather,

they merely constitute factors relevant to an assessment of whether the trial court

abused its discretion. Id.

The Facts

During the final hearing on the divorce, the trial court took judicial notice of the

proceedings in a prior criminal trial in which Bonner was convicted of six counts of

indecency with a child, four counts of indecency with a child, and two counts of

inducing a child to engage in sexual conduct or a sexual performance. 1 He was

sentenced to ninety-nine years imprisonment for each of the sexual assault convictions

and twenty years for each of the other convictions. However, the victims in those cases

were not M.A.B. or N.C.B., but were L.D. and another child who was a friend of L.D.

L.D. is the step-sister of M.A.B. and N.C.B. and they were residing in the same

household when the offenses took place. While M.A.B. and N.C.B. were not the victims

1This conviction was appealed to this Court, and the convictions were recently affirmed. Bonner v. State, No. 10-09-00120-CR, 2010 Tex. App. LEXIS 7440 (Tex. App.—Waco Sep. 8, 2010, no pet. h.) (not desig. for publication).

In the Matter of the Marriage of Bonner Page 3 for those offenses, there was testimony that N.C.B. had observed Bonner sexually

assaulting L.D. on at least one occasion.

Additionally, when M.A.B. and N.C.B. were removed from the Bonners’s

custody by the Department of Family and Protective Services, 646 marijuana plants and

other evidence demonstrating Bonner’s extensive marijuana manufacturing operations

were located. The children were required to assist Bonner in caring for the plants.

During the case in which the Department was involved, M.A.B. made an outcry of

sexual abuse against Bonner. The divorce action was consolidated with the

Department’s case against the Bonners.

The Family Code and Family Violence

Section 153.131(b) of the Family Code provides that the appointment of a parent

as a joint managing conservator is presumed to be in the best interest of a child unless

the trial court finds that there is a history of family violence. TEX. FAM. CODE ANN. §

153.131(b) (Vernon 2008). The Family Code’s definition of family violence includes

sexual assault of a member of a family or household, which L.D. certainly was. TEX.

FAM. CODE ANN. § 71.004(1) (Vernon 2008). Further, the trial court is actually prohibited

from naming a party as a joint managing conservator if “credible evidence is presented

of a history or pattern of past or present child neglect, or physical or sexual abuse by

one parent directed against … a child ….” TEX. FAM. CODE ANN. § 153.004(b) (Vernon

2008). Additionally, the trial court is required to “consider the commission of family

violence in determining whether to deny, restrict, or limit the possession of a child by a

In the Matter of the Marriage of Bonner Page 4 parent who is appointed as a possessory conservator.” TEX. FAM. CODE ANN. §

153.004(c) (Vernon 2008).

Analysis

Bonner has not complained of the trial court’s taking judicial notice of the

proceedings against him, nor has he complained of the trial court naming his wife as the

sole managing conservator of the children other than his complaint of not being named

a joint managing conservator with her. We do not find that the trial court abused its

discretion by naming him a possessory conservator and not a joint managing

conservator or by denying Bonner access to his children. In fact, the trial court made

the orders that were mandated by the Family Code regarding conservatorship of the

children and we find that the evidence was certainly sufficient for the trial court to have

determined that an individual convicted of sexually assaulting his children’s sibling

should have no access to his children. We overrule issues one and three.

Findings in Decree of Divorce

The final decree of divorce included a provision that “due to Respondent being

incarcerated for a felony conviction of sexual, physical and emotional abuse of the

children the subject of this suit, Respondent shall have no access with the minor

children.” Generally, unless otherwise required, findings of fact should not be

contained in a judgment. TEX. R. CIV. P. 299a.

We may review findings made by a trial judge to determine whether they are

supported by legally or factually sufficient evidence. See Lucas v. Texas Dept. of

Protective and Regulatory Serv's, 949 S.W.2d 500, 502 (Tex. App.—Waco 1997, writ

In the Matter of the Marriage of Bonner Page 5 denied), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002), (citing

Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989)). However, where we have a

complete transcript of the proceedings before us, we do not view the trial court’s

written finding as conclusive. See id. Instead, we review the entire record and will not

reverse an otherwise correct judgment simply because of an erroneous finding. See id.

We will affirm the judgment even if the court’s finding lacks sufficient evidentiary

support, if the record contains sufficient evidence to do so. See id. Although we find

that the trial court’s finding was not supported by the record and was erroneously

included in the final decree of divorce on both procedural and substantive grounds, the

entire record supports the trial court’s judgment denying him possession and access of

M.A.B. and N.C.B., and thus we will not reverse the judgment for the erroneous

finding. See Lucas, 949 S.W.2d at 502. We overrule issue two.

Conclusion

We find that the trial court did not abuse its discretion by denying Bonner access

to his children or by not naming him a joint managing conservator of his children. We

find that although the trial court’s finding regarding M.A.B. and N.C.B.’s

“involvement” in his felony convictions was erroneous, the entire record supports the

judgment. We affirm the judgment of the trial court.

TOM GRAY Chief Justice

In the Matter of the Marriage of Bonner Page 6 Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed November 3, 2010 [CV06]

In the Matter of the Marriage of Bonner Page 7