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
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,
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
"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
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
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
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
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.
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.
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.
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.
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
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).
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. 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.