in the Matter of the Marriage of Steve Leon Smith, II and Tami Renee` Smith and in the Interest of Randall Cliff Smith, a Child

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-02-00034-CV ______________________________

IN THE MATTER OF THE MARRIAGE OF STEVE LEON SMITH, II, AND TAMI RENEE SMITH AND IN THE INTEREST OF RANDALL CLIFF SMITH, A MINOR CHILD

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On Appeal from the 6th Judicial District Court Fannin County, Texas Trial Court No. 34,632

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Before Morriss, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

Tami Renee Smith appeals the trial court's judgment concerning conservatorship and support of Randall Cliff Smith ("Randy"), ⁽¹⁾ a minor child who was five years old at the time of the divorce. After a bench trial, Steve Leon Smith, II, was appointed sole managing conservator of Randy. Tami was appointed possessory conservator and was ordered to pay Steve child support of $208.00 per month.

In her points of error, Tami alleges: (1) the trial court failed to consider family violence committed by Steve when it appointed Steve as sole managing conservator; (2) the appointment of Steve as sole managing conservator is a violation of Tex. Fam. Code Ann. § 153.004(b) (Vernon 2002); (3) the trial court abused its discretion by considering whether Steve was provoked into the family violence; and (4) the trial court abused its discretion by concluding it was in the best interest of the child for Steve to be appointed sole managing conservator.

Randy is the only child of the marriage. Tami has two older children, a boy and a girl. Steve filed for divorce June 20, 2001. Before filing for divorce, Steve and Tami were separated for three months. At the time of their separation, Steve continued to live in the five-bedroom rental home he and Tami had occupied during their marriage. This home was located within two miles of Steve's parents' residence. Tami and her children, including Randy, lived with Tami's sister and brother-in-law and their daughter. Steve testified that, about two weeks after they separated, Tami brought Randy to live with him, where he stayed for approximately two months. During this time, Steve was employed as a backhoe operator in his father's business, a job he had held for the past eight years. With the help of day care, Steve was able to care for Randy. During this two-month period, Randy spent Saturday nights with Tami. After these two months, Randy returned to live with Tami in the home of Tami's sister and her family. The two boys shared a room, and the two girls shared a room. Tami was employed as a receptionist at a glazing company, a job she had held for approximately six months. Tami's sister took Randy to school each day, and her brother-in-law or mother picked him up from school. Tami's brother-in-law was at home with the children after school until Tami and her sister returned home from work. This was Randy's living arrangement for approximately one month before Steve filed for divorce. After that, the trial court signed temporary orders appointing Steve and Tami joint temporary managing conservators, with Tami having the exclusive right to establish Randy's primary residence. During the pendency of the divorce, Tami and Randy continued to live with Tami's sister and her family. Steve was given standard visitation rights under the temporary orders of the court and was ordered to pay Tami temporary child support.

The trial court is given wide latitude in determining the best interest of a minor child, and the judgment of the trial court will be reversed only when 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). An abuse of discretion occurs when the trial court's actions are arbitrary and unreasonable and without reference to any guiding rules or principles of law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In a review applying an abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are treated as relevant factors in assessing whether the trial court abused its discretion. In re Marriage of Bertram, 981 S.W.2d 820, 822 (Tex. App.-Texarkana 1998, no pet.).

In Tami's first point of error, she contends the trial court failed to consider credible evidence of physical abuse by Steve committed within the two years preceding his filing for divorce. Tex. Fam. Code Ann. § 153.004(a) (Vernon 2002) states:

In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party's spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.

The record reflects the following "official" documentation of violence by Steve:

1) March 22, 1998 - Steve was arrested for assault against his mother. The police report stated that, during an argument, Steve slapped his mother in the face.

2) July 15, 1999 - Steve was arrested for deadly conduct. According to police reports, Steve drove his truck into Tami's vehicle. Then, Tami's vehicle slid into their residence and also hit Tami's right leg.

3) September 14, 2000 - Steve was arrested for assault against Tami and an emergency protective order was issued. According to police reports, Steve and Tami were arguing about Randy's bath. Ultimately, Steve pushed Tami on top of her daughter and held them down. The daughter managed to get up and call 9-1-1. No one was physically injured during this incident.

The trial court admitted these reports, as well as testimony concerning the above incidents, into evidence. Tami also testified concerning other incidents of violence. She testified Steve first struck her when she was pregnant with Randy. Tami also testified Steve had "backhanded" her, resulting in her suffering a bloody lip and a black eye, and that Steve once threw her down on some boxes, which left her bruised.

As noted, Section 153.004(a) imposes a mandatory consideration of family violence occurring within two years preceding the filing of divorce. Although the trial court admitted evidence of the incident that occurred March 22, 1998, because the petition for divorce was filed June 20, 2001, this incident is not within the mandatory two-year period.

It is fair to presume the trial court did consider all of the evidence offered by Tami, because the court admitted all of it into evidence, including the March 1998 incident. Tami has not directed us to anywhere in the record showing the trial court did not consider this evidence. Merely because the court appointed Steve sole managing conservator does not mean the trial court did not consider this evidence. Tami's first point of error is overruled. In her second point, Tami contends the appointment of Steve as the sole managing conservator was a violation of the statutory presumption against appointing a person with a history or pattern of abuse. Tex. Fam. Code Ann. § 153.004(b) provides as follows:

It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or 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 credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.

If there is credible evidence of a history or pattern of past physical abuse by a parent against the other parent, there is a presumption that the appointment of that parent as the sole managing conservator of a child is not in the best interest of the child. Tex. Fam. Code Ann. § 153.004(b). This statute expressly makes this presumption a rebuttable one. Hence, even if the trial court finds the evidence sufficient to trigger this presumption, it may also find that other evidence rebuts this presumption.

Tami presented the evidence of violence by Steve toward her described above. Steve, on the other hand, presented testimony that Tami had also engaged in family violence. Although Steve's testimony about Tami's family violence was sometimes contradictory, when asked why Tami did not have a conviction for such violence, Steve answered, "[b]ecause I didn't call her in [to the police]." In addition to this evidence, other testimony was given concerning Steve's ability to care for Randy. Several witnesses testified positively about Steve's parenting skills and his ability to provide for the needs of a small child. Steve further offered testimony about the home environment he could provide for Randy. He testified about the size of his house and the furnishings there. Steve's mother testified that Randy enjoys the yard and the animals at Steve's home. She further testified that, because Steve works for his parents, his job is secure.

Even if the trial court found the statutory presumption applicable to Steve, the other testimony concerning family violence committed by Tami, Steve's home environment, his financial stability, and the care he is able to provide Randy was sufficient to rebut this presumption. The trial court listened to the testimony presented by Tami as well as to the testimony presented by Steve. Ultimately, the trier of fact may believe one witness and disbelieve another. Bertram, 981 S.W.2d at 824. At the end of the trial, the trial court stated, "on the issues beyond that where there was conflict on the facts of the case, the simple fact is that I believe Mr. Smith and his witnesses and I did not believe Mrs. Smith and her witnesses."

Because there was sufficient evidence for the trial court to determine that the presumption under Section 153.004(b) had been successfully rebutted, it was not an abuse of discretion for the trial court to appoint Steve as Randy's sole managing conservator. This point of error is overruled.

As her third point of error, Tami contends the trial court abused its discretion by considering whether Steve was provoked into violence against her. The Texas Supreme Court has stated that provocation is not relevant to determining whether there was physical abuse or a history or pattern of domestic violence. Pena v. Pena, 8 S.W.3d 639 (Tex. 1999).

There was testimony given by both Steve and other witnesses concerning Tami's provocation of Steve. At the end of the trial, and while discussing Steve's appointment as sole managing conservator, the trial court stated, "I've got to decide between two people who have admittedly - I guess admittedly, at least each of them have had a number of flaws in their character in various ways." Then later, in closing, the court made an off-hand reference to Steve having been "provoked into a lot of this." When the court made the statement about Steve having been provoked, it is not clear the court was talking about violence. The statement was made right after the court had discussed both drinking and violence. So, whether the reference to provocation was directed toward one or both of these activities is unclear. Further, there is no mention of provocation in the trial court's findings of fact and conclusions of law. Therefore, there is no clear indication in the record that the trial court relied on the testimony concerning provocation in its decision to appoint Steve the sole managing conservator of Randy. We do not believe the Texas Supreme Court's holding in Pena concerning provocation is applicable to the context in which the trial court made its off-hand comment in this case. This point of error is overruled.

In her fourth and fifth points of error, Tami contends it was an abuse of discretion for the trial court to conclude the best interest of the child was served by appointing Steve as the sole managing conservator, because there was evidence of family violence committed by Steve and because public policy is to provide a safe, stable, and nonviolent environment for the child. ⁽²⁾

When determining the best interest of a child, the Texas Supreme Court has given a suggested list of factors to consider: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is only suggestive, meaning the courts may consider additional factors and are not required to apply all of the listed factors. Overall, the trial court is given wide latitude in determining the best interest of a minor child, and the judgment of the trial court will be reversed only when it appears from the record as a whole the court has abused its discretion. Gillespie, 644 S.W.2d at 451.

Because Randy was only five years old at the time of the divorce, the desire of the child was not an appropriate consideration in determining custody in this case. However, other factors suggested by the Texas Supreme Court may be applied. The trial court heard the testimony concerning family violence offered by both Tami and Steve. This evidence is clearly applicable to the second and third factors. However, nowhere was there evidence of abuse toward Randy by either parent. The court also heard testimony about where both Steve and Tami were currently living, which was relevant to the second and third factors. With regard to the fourth factor, the court heard testimony that both parents are able to adequately care for Randy. The court listened to testimony about the relationship of both parents with Randy and undoubtedly took into consideration Tami's own testimony that Randy loves to be with Steve. The testimony about the living arrangements of both parents was applicable to the sixth and seventh factors, which concern the plans for the child and the stability of the home available to the child.

After all the testimony and evidence was presented, the trial court determined it was in Randy's best interest for Steve to be appointed sole managing conservator. There was sufficient evidence under the Texas Supreme Court's suggested factors for the trial court to make this determination. Because the trial court has wide latitude in determining the best interest of a child, it was not an abuse of discretion for the trial court to appoint Steve sole managing conservator.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: September 13, 2002

Date Decided: October 3, 2002

Do Not Publish

1. The parents call the child Randy.

2. Tex. Fam. Code Ann. § 153.001(a)(2) (Vernon 2002) states this public policy.