Kotrla v. Kotrla

718 S.W.2d 853, 1986 Tex. App. LEXIS 8850
CourtCourt of Appeals of Texas
DecidedOctober 2, 1986
Docket13-86-329-CV
StatusPublished
Cited by9 cases

This text of 718 S.W.2d 853 (Kotrla v. Kotrla) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kotrla v. Kotrla, 718 S.W.2d 853, 1986 Tex. App. LEXIS 8850 (Tex. Ct. App. 1986).

Opinion

OPINION

UTTER, Justice.

This is an appeal from a divorce decree dissolving the marriage of the parties and appointing appellee as managing conservator of their minor daughter. We affirm.

By her first point of error, appellant contends that the trial court erred in admitting a tape recording into evidence and allowing it to be played to the jury.

Appellee, in May of 1985, recorded a conversation between himself and appellant without appellant’s knowledge or consent. In the conversation, appellant admitted having used cocaine, once growing marihuana plants and that if she “had the money” she would have a “cocaine habit.”

Appellant argues that TEX.REV.CIV.STAT.ANN. art. 9019 (Vernon Supp.1985) 1 precludes the admissibility of the tape recording because she did not consent to it. We disagree. Article 9019 (now entitled Interception of Communication) confers a cause of action upon a party to a communication who has been the victim of an “eavesdropping.” See Figure World, Inc. v. Farley, 680 S.W.2d 33 (Tex.App.—Austin 1984, writ ref’d n.r.e.).

The statute provides that “interception” occurs when a “communication” is acquired “without the consent of a party to the communication.” TEX.CIV.PRAC. & REMS. CODE ANN. § 123.001(2). In this case, “a party,” appellee, consented to the recording. The statute is therefore inapplicable under these facts.

Furthermore, the statute does not address the admissibility of a tape recording. Tape- recordings, even if obtained without the consent of a party to it, are admissible if the proper predicate is lain. Seymour v. Gillespie, 608 S.W.2d 897 (Tex.1980). Appellant does not complain about the predicate.

Appellant also argues that the alleged use of marihuana and cocaine occurred in 1982 or earlier, prior to their marriage and is therefore too remote to be relevant to the issues in this case.

The primary concern in determining custody of a child is the best interest of the child. Zuniga v. Zuniga, 664 S.W.2d 810 (Tex.App.—Corpus Christi 1984, no writ). Prior involvement with drugs is certainly relevant to whether a parent should be awarded custody of a child. Further, the question of whether evidence is too remote is generally left to the sound discretion of the trial court. Carter v. Converse, 550 S.W.2d 322 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r.e.). Under the circumstances of this case, we cannot say that the trial court abused its discretion in admitting such evidence. Appellant’s first point of error is overruled.

*856 By her second point of error, appellant contends that the trial court should have granted her motion for new trial because the fact that she was granted “broad” visitation rights shows that the best interest of the child would be served by appointing her as managing conservator. Appellant cites no authority to sustain her contention. We find no merit in this argument. The fact that appellant may have been granted generous visitation rights falls far short of showing that she was the parent best suited to be the managing conservator of the child. Appellant’s second point of error is overruled.

By her third and fourth points of error, appellant challenges the sufficiency of the evidence to support the appointment of ap-pellee as managing conservator. In considering a “no evidence” or “insufficient evidence” point of error, we will follow the well-established test set forth in Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App.—Corpus Christi 1981, writ ref'd n.r.e.); Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

At trial, both parties presented evidence in an attempt to show that he or she should be the managing conservator and that the other should not. At the time of trial, appellee was employed as the manager of a butcher shop and had made day-care arrangements for his daughter while he was at work. He has a three-bedroom apartment with “room to romp and stomp.”

The jury found that appellee should be appointed managing conservator. The jury’s verdict is binding on the trial court in this regard if there is sufficient evidence to uphold the jury’s finding. TEX.FAM.CODE ANN. § 11.13(b) (Vernon 1986); In re Soliz, 671 S.W.2d 644 (Tex.App.—Corpus Christi 1984, no writ). Even in a case in which the evidence would support the appointment of either parent as managing conservator, the appointment of one over the other is not an abuse of discretion. See Fergus v. Fergus, 547 S.W.2d 51 (Tex.Civ.App.—Eastland 1977, no writ). The trial court’s appointment of appellee, in conformity with the jury’s verdict, as managing conservator, is supported by sufficient evidence. Appellant’s third and fourth points of error are overruled.

By her fifth point of error, appellant contends that it was error to admit into evidence her prior cocaine and marihuana use and evidence of an association with a lesbian. We have already discussed the admissibility of the prior cocaine and marihuana use under appellant’s first point of error. As to the admission of evidence concerning association with a lesbian, appellant did not object when this testimony was elicited. Failure to make an objection waives review on appeal. Caterpillar Tractor Co. v. Boyett, 674 S.W.2d 782 (Tex.App.—Corpus Christi 1984, no writ). Appellant’s fifth point of error is overruled.

By her sixth point of error, appellant contends that the trial court erred in failing to grant her request for reimbursement.

Appellant claims that she entered the marriage with $14,000.00 in a savings account which was her separate property. She asserts that these funds were used to enhance the community estate. However, the evidence presented established that these funds were used to pay for general living expenses, the medical bills associated with the birth of their child, and a car which was agreed to be appellant’s separate property. Both the husband and wife are required to furnish support for community living, and if there are no community funds available for such use, then the spouse having separate funds is required to use them for community living expenses.

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Bluebook (online)
718 S.W.2d 853, 1986 Tex. App. LEXIS 8850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kotrla-v-kotrla-texapp-1986.