in the Matter of the Marriage of Elizabeth Baker-McLain and John Wesley McLain, III

• Court: Court of Appeals of Texas
• Decided: October 8, 2007
• Docket: 07-06-00143-CV
• Status: Published

Opinion

NO. 07-06-0143-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 8, 2007

______________________________

IN THE MATTER OF THE MARRIAGE OF JOHN WESLEY MCLAIN III AND ELIZABETH BAKER-MCLAIN AND IN THE INTEREST OF JOHN WESLEY MCLAIN IV, GENEVA ELIZABETH MCLAIN AND BENJAMIN MARCUS MCLAIN, CHILDREN _________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY;

NO. 05-244-FC2; HON. TIM L. WRIGHT, PRESIDING _______________________________

Before QUINN, C.J., CAMPBELL, J. and BOYD, S.J.1

MEMORANDUM OPINION

In this appeal, Elizabeth Baker-McLain (Elizabeth) challenges a decree terminating

her marriage to John Wesley McLain, III (Wesley). In doing so, she raises five issues in

which she asserts the trial court erred in: 1) appointing both parties as joint managing

conservators of the three minor children born to the marriage, because there is undisputed

evidence that Wesley has a history of committing family violence; 2) appointing Wesley as

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2007).

1 primary joint managing conservator of the children contrary to the evidence that she was

their primary caregiver; 3) failing to make a fair and equitable division of the community

estate in regard to the rights of the parties and the needs of the children; 4) making biased

statements against her in regard to her having a mental illness and disregarding Wesley’s

conflicting testimony; and 5) signing a final divorce decree that did not accurately reflect

the judgment rendered. We modify the judgment, and, as modified, affirm it.

Background

The parties were married on February 12, 2000, in Fairfield, Ohio, where Elizabeth’s

parents and siblings reside. Several months later, the couple moved to Austin so that

Wesley could take a job with Dell. Over the next three years, Elizabeth gave birth to three

children, two boys and a girl. She stayed home to care for them. In February 2005,

Wesley filed suit for divorce. On September 14, 2006, the trial court entered the divorce

decree giving rise to this appeal. In the decree, the court appointed the parties as joint

managing conservators of the children with Wesley having the right to designate the

children’s primary residence.

Issues 1 and 4 - Family Violence

In her first issue, Elizabeth asserts there was “undisputed evidence of the intentional

use of abusive force by Wesley against Elizabeth from September 2000 to February 2005"

which rebuts the presumption that the appointment of both parents as joint managing

conservators is in the best interest of the children.

The trial court has considerable discretion in determining the best interest of minor

children. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re Marriage of Stein,

2 153 S.W.3d 485, 488 (Tex. App.–Amarillo 2004, no pet.). Even so, the trial court may not

appoint joint managing conservators if there is credible evidence of a history or pattern of

past or present physical abuse directed by one parent toward the other parent. Tex. Fam.

Code Ann. §153.004(b) (Vernon Supp. 2006). There is also a rebuttable presumption that

the appointment of a parent as the conservator who has the exclusive right to determine

the primary residence of a child is not in the best interest of the child if such abuse exists.

Id. In making its decision, the trial court should consider any such abuse that has occurred

within a two-year period preceding the suit or during the pendency of the suit. Id.

§153.004(a). If there is such evidence, but the evidence is conflicting and nothing

undisputedly shows a history or pattern of violence, it is within the trial court’s discretion to

resolve the conflict in favor of the person to whom it ultimately makes its award. Burns v.

Burns, 116 S.W.3d 916, 921 (Tex. App.–Dallas 2003, no pet.); Lowth v. Lowth, No. 14-03-

0061-CV, 2003 Tex. App. LEXIS 10715 at 14-15 (Tex. App.–Houston [14th Dist.] December

23, 2003, pet. denied).

In this case, at the March 3, 2004 hearing on temporary orders, Elizabeth testified

as to two acts of physical abuse that Wesley had committed against her.2 She averred that

one such act occurred when she was pregnant with her first child and Wesley charged

toward the front door and knocked the breath out of her. The other occurred when their

son was two months old and Wesley threw her to the floor. In response, Wesley denied

that he had ever touched her except in self defense. He did, however, admit he had hit

2 Elizabeth and her sister also testified about an act of violence against the sister that allegedly involved choking the sister after she had pulled the keys out of a vehicle Wesley was driving.

3 “things” and that he had yelled at her. He described one such incident as occurring when

Elizabeth was trying to destroy computers he used and said he stepped between her and

the computers which caused her to fall. Wesley also testified that Elizabeth would try to

block him into corners and, as he walked past, she would scratch him. There was further

testimony that in February 2005, Elizabeth called law enforcement officers and said that

Wesley had a book on sailboats which also contained a code setting out a method of killing

or harming her. On that occasion, an officer determined Elizabeth needed further mental

evaluation and she was committed to a mental hospital for several days.

At a subsequent hearing on June 17, 2005, Elizabeth testified to a third act of

physical abuse that assertedly occurred in February 2005 when, she said, Wesley threw

and hit her with headphones and a television remote. Although this act occurred prior to

the initial hearing, she did not mention it at that time. Elizabeth’s sister also testified that

in September 2000, Wesley pushed Elizabeth which caused her to fall. The record is not

clear whether this was the same act about which Elizabeth had testified at the prior

hearing.

Although the allegation was not made until sometime between the June 17, 2005

hearing and the final hearing on September 14, 2005, Elizabeth asserted that her daughter

informed her that Wesley would touch her “privates.” She also said she had noted bruising

on her youngest son from his thigh to his knee and she noticed that he had a cut lip. She

submitted photographs of her son’s bruising as well as photographs of bruises on her

daughter’s bottom and inner thigh and of a “bruised” lip. These allegations resulted in two

reports being made by Elizabeth to Child Protective Services. Wesley denied having

4 caused any of the bruises on the children and averred that his son had tripped at a park

and cut his lip and that his daughter’s cut lip did not occur in his care.

A Child Protective Services employee testified that the sexual abuse investigation

had been closed because there were no physical findings in the case and the case worker

did not get a “solid outcry” from the child. The worker also testified that, although the

investigation had not yet been closed, no concrete findings had been made that Wesley

had bruised the children or been physically abusive to them. Child Protective Services had

determined that both parents fought over visitation with the children and recommended that

they both repeat a parenting class.

The trial court found that Elizabeth had “made testimonial allegations of abuse

against [Wesley]; however, [Elizabeth] did not present credible evidence to support her

allegations, and said allegations were refuted by [Wesley’s] testimony.” There is sufficient

evidence in the record to support this finding.

The record contains allegations of three acts of physical abuse against Elizabeth.

However, the record also shows Wesley denied having ever touched Elizabeth except in

self defense and denied having thrown a television remote at Elizabeth. Our review of the

record also shows that it cannot be said there is undisputed evidence of physical or sexual

abuse of the children. It is axiomatic that a trial court is in a better position to evaluate the

claims of the parties and to believe or disbelieve their testimony. Stucki v. Stucki, 222

S.W.3d 116, 124 (Tex. App.–Tyler 2006, no pet.) As the trier of fact, the trial judge is the

determinant of the credibility of the evidence and the weight to be given to it. Coleman v.

Coleman, 109 S.W.3d 108, 111 (Tex. App.–Austin 2003, no pet.). That being so, this

5 record does not support a conclusion that the trial judge abused its discretion in appointing

the parties as joint managing conservators.

In her fourth issue, Elizabeth additionally complains that the trial court erred in ruling

in favor of Wesley by disregarding her evidence about not having a mental illness and

disregarding inconsistencies she believes to exist in Wesley’s testimony. As we have

noted, when there is conflicting evidence, as the fact finder, it is the trial court’s duty to

resolve conflicts in evidence, and an appellate court may not substitute its decision for that

of the trial court. It was also for the trial court to weigh the evidence in the record with

regard to Elizabeth’s mental health.

In that regard, we note the trial court initially appointed Elizabeth the primary

managing conservator of the children even though it had evidence before it of Elizabeth’s

temporary commitment to a mental health facility, an indication that it did not let that

evidence prevent it from finding her fit to care for the children. It was not until a second

hearing and evidence that Elizabeth had not been cooperative in allowing Wesley access

to the children that the trial court named Wesley as the primary managing conservator.

The record does not show an abuse of discretion on the part of the trial court.

Issue 2 - Primary Care Giver

In her second issue, Elizabeth complains that the trial court failed to accord

sufficient weight to her testimony and it erred in appointing Wesley as the primary care

giver.

In supporting that proposition, Elizabeth points out that throughout the marriage, she

was the parent who stayed home, cared for the children, and “had the stronger emotional

ties to the children.” In considering her argument, it is axiomatic that the best interest of

6 the children is the primary consideration in determining the issues of conservatorship and

possession of, and access to, the children. Tex. Fam. Code Ann. §153.002 (Vernon 2002).

Even though there is evidence that a mother has been the primary care giver of the

children, the trial judge is entitled to consider all the evidence, and its failure to appoint the

mother as managing conservator does not automatically demonstrate an abuse of

discretion. See Rossen v. Rossen, 792 S.W.2d 277, 278 (Tex. App.–Houston [1st Dist.]

1990, no pet.) (finding no error in appointing the father as sole managing conservator even

though there was evidence the mother had been the primary care giver.)

In its initial temporary order, the trial court appointed Elizabeth as the primary

managing conservator of the children. However, at the later hearing on June 17, 2005, the

court had before it evidence that Elizabeth had been uncooperative in allowing Wesley

access to the children, namely 1) she cut out his midweek visitation after March 2005, 2)

she had informed him he was not allowed to take the children from the house during his

visitation periods, 3) when he tried to have telephone visitation, she either did not answer

the phone or she monitored his telephone conversations with the children, and 4) when he

called to make arrangements to take the children to specific events, he was told that

Elizabeth and the children were busy until the temporary orders ended. Additionally, the

trial court made a specific finding that during the pendency of the matter, “[Elizabeth] has

engaged in a course of conduct aimed at alienating the Petitioner [Wesley] and the children

from each other.” That finding is supported by the evidence. Under the evidence before

the trial court, we cannot say that the change in the primary managing conservator was not

in the best interest of the children. See Allen v. Mancini, 170 S.W.3d 167, 171 (Tex. App.–

Eastland 2005, pet. denied) (finding a change in the primary managing conservator was

7 not error when there was evidence the mother had engaged in alienation of the children

from the father).

Issue 3 - Division of the Community Estate

In her third issue, Elizabeth argues there is no evidence to support the trial court’s

signed division of property because “when an oral judgment is not rendered on community

assets . . . , the former spouses become tenants in common with a right of partition.”

Parenthetically, the trial court’s division of property will not be reversed absent an abuse

of discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). While it is true that when

a court fails to divide portions of community property, the ex-spouses become tenants in

common, Harrell v. Harrell, 692 S.W. 2d 876 (Tex. 1985), Elizabeth fails to specify any

particular division of property to which she objects. Rather, she merely objects in a general

manner by asserting there was no evidence to support the division. It is established that

an appellate brief must contain clear and concise arguments with appropriate citations to

authority and the record to support the arguments. When it does not do so, the complaint

is inadequately briefed and presents nothing for review. Mayhew v. Dealey, 143 S.W.3d

356, 368 (Tex. App.–Dallas 2004, pet. denied). Because Elizabeth has failed to

adequately brief this contention, we overrule the issue.

Issue 5 - Final Judgment

In her last issue, Elizabeth contends that the final judgment signed by the trial court

does not comport with its oral pronouncement of judgment. In buttressing that argument,

she lists ten instances in which she believes the written judgment fails to do so.

8 In sub-issues A, B, C, and D, Elizabeth asserts errors in the visitation schedule.

Responding, Wesley asserts these matters are moot because there is a pending motion

to modify the parent/child relationship in which a temporary order modifying visitation has

been entered, and he has attached a copy of that order. Yet, an appellate court may not

consider documents attached to an appellate brief that are not formally included in the

record on appeal. Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.–

Dallas 2006, pet. denied). Moreover, the fact that temporary orders modifying the

conservatorship provision of the final divorce decree have been entered does not

necessarily render an appeal from the divorce decree moot because the party seeking

modification bears the burden of proving a change in circumstances. Bockemehl v.

Bockemehl, 604 S.W.2d 466, 470 (Tex. Civ. App.–Dallas 1980, no writ).

Even so, Elizabeth’s basis for claiming error with respect to these matters appears

to be a statement made by the trial court that it was “going to approve the current visitation

schedule that you two have worked out . . . .” That schedule, which was not reduced to

writing, allowed Elizabeth more time with the children than had been allowed by temporary

orders. However, any differences in the visitation schedule between the oral rendition and

the entry of the final judgment may be considered a modification within the plenary power

of the court. Stallworth v. Stallworth, 201 S.W.3d 338, 349 (Tex. App.–Dallas 2006, no

pet.); Cook v. Cook, 888 S.W.2d 130, 131-32 (Tex. App.–Corpus Christi 1994, no writ).

Elizabeth does not attack these changes as being an abuse of the trial court’s discretion.

That being so, we have no basis upon which to find them erroneous.

9 In her sub-issue E, Elizabeth claims her child support obligation should have

commenced on January 1, 2006, instead of October 1, 2005, without further explication.

That being so, we find that sub-issue waived because of inadequate briefing.

In her sub-issues F and G, Elizabeth complains that the addresses and phone

numbers listed for her and Wesley in the divorce decree are incorrect or are incomplete.

However, she has again failed to state a legal basis upon which we can find error on the

part of the trial judge.3 There is nothing in the appellate record that supports this

allegation.

In sub-issue H, Elizabeth contends that the portions of the divorce decree that

award cash, individual retirement accounts, pensions, annuities, variable life insurance

benefits and life insurance policies should not be included because “the trial court did not

determine the rights of both spouses in any pension, retirement plan, annuity, individual

retirement account, employee stock option plan, stock option, or other form of savings,

bonus, profit-sharing, or other employer plan or financial plan of an employee or a

participant.”

In supporting that premise, she cites the rule that “when an oral judgment is not

rendered on community assets, the former spouses become tenants in common with a

right of partition.” However, the rule to which Elizabeth refers is not one which applies to

an “oral judgment” but is, rather, applicable to instances in which the trial court has failed

to make any division of the property. See Busby v. Busby, 457 S.W.2d 551, 554 (Tex.

3 Wesley does not object to making these changes if we consider them to be anything more than mere grammatical errors. However, we do not consider this question to be a substantive one requiring action by this court.

10 1970) (stating the rule that when a divorce decree fails to divide property, the husband and

wife become tenants in common as to the community property); In re Marriage of Notash,

118 S.W.3d 868, 872 (Tex. App.–Texarkana 2003, no pet.) (stating that when a court fails

to divide property at the time of divorce, the ex-spouses become tenants in common).

Here, the trial court did make a division of the property in its final decree. Therefore, this

complaint is without merit.

In her sub-issue I, Elizabeth argues that her student loans should not be her sole

responsibility because the trial court had orally stated: “The debt is 50/50 . . . .” It is not

clear from the record whether the trial court’s 50/50 reference was only to the community

debts or whether it referred to such a division of all the debts. Even so, however, there

was testimony in the record by Wesley that Elizabeth had come into the marriage owing

student debts, and Elizabeth has not disputed that fact. That being so, the trial court would

have erred in assigning that obligation to the non-incurring spouse. Love v. Bailey-Love,

217 S.W.3d 33, 35 (Tex. App.–Houston [1st Dist.] 2006, no pet.). The record therefore

supports the disposition made in the trial court’s final written decree.

Finally, in her sub-issue J, Elizabeth avers that the trial court erred in ordering her

to execute a certificate of title and power of attorney to transfer a motor vehicle inasmuch

as she was never listed as an owner on any of the car titles to vehicles used by the couple.

Wesley agrees that this was the case and does not object to the revision. Accordingly, the

final decree of divorce is reformed to delete that portion of it shown on page 31 in which

the court orders Elizabeth to execute, have acknowledged, and deliver to Wesley a

certificate of title and power of attorney to transfer the vehicle.

11 In summary, all of Elizabeth’s issues are overruled with the exception of that

pertaining to the motor vehicle and, as reformed, the judgment of the trial court is affirmed.

John T. Boyd Senior Justice