Martinez v. Gonzalez

553 S.W.3d 509
CourtCourt of Appeals of Texas
DecidedMarch 7, 2018
DocketNo. 08-14-00170-CV
StatusPublished
Cited by1 cases

This text of 553 S.W.3d 509 (Martinez v. Gonzalez) 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
Martinez v. Gonzalez, 553 S.W.3d 509 (Tex. Ct. App. 2018).

Opinion

YVONNE T. RODRIGUEZ, Justice

In two issues, Appellant, Isaias Martinez ("Father") appeals the trial court's determination of conservatorship for his minor child: N.V.M. The divorce decree named both parents as joint managing conservators of the child but gave Appellee, Laura Gonzalez ("Mother"), the exclusive right to designate the child's primary residence. Father argues: (1) it was not in the best interest of the child to appoint Mother and Father as joint managing conservators; and (2) it was not in the best interest of the child to designate Mother as the joint managing conservator with the exclusive right to designate the primary residence of the child. We affirm.

BACKGROUND

Father and Mother were married on February 14, 2008. N.V.M. was born prior to their marriage on August 16, 2007. Father filed for divorce on August 10, 2010. A final hearing was held on April 28, 2014. At the final hearing, the only issue before the trial court was the possession and conservatorship of the child. At the time of the hearing, the child lived with Mother.

1. The Psychotherapist

Dr. Enrique Reyes was first to testify at the hearing. Dr. Reyes, a psychotherapist specializing in hypnotherapy and educational psychology, explained he had been in practice approximately forty years. Dr. Reyes had evaluated the child and Father. In evaluating Father, Dr. Reyes concluded that he was "normal" and that "[n]o psychological *511problems were indicated." In evaluating N.V.M., Dr. Reyes concluded that the child needed a lot of help and, while he could not say that the child was cognitively challenged, the child was developmentally delayed. Dr. Reyes told the trial court he believed Father is capable of raising the child. Dr. Reyes did not evaluate Mother.

2. Other Witnesses

Rebecca Santillan, whose son attended karate lessons with N.V.M., testified that she knew Father, Father's parents (N.V.M.'s paternal grandparents), Mother, and N.V.M. Santillan stated she often offered to give N.V.M. rides home from karate lessons or from school. Mother, however, repeatedly declined Santillan's offers. N.V.M. informed Santillan that his Mother warned him not to communicate with Santillan. When asked about N.V.M.'s hygiene, Santillan stated N.V.M. told her that he "doesn't shower often and that [Mother] doesn't have time to do the laundry." In addition, N.V.M. told Santillan that a change of clothes was only allowed after showering.

Santillan explained that during monthly outings with the karate group and Father, N.V.M. would begin crying and asked not to go home with Mother. On one occasion, Santillan was called from N.V.M.'s school when the school was unable to contact Mother since she, not Father or N.V.M.'s paternal grandparents, had been placed on the emergency contact list.

Nancy Gaucin, Mother's cousin, also testified. Gaucin asserted she was testifying "to do what's right for the child." Gaucin was aware of the N.V.M.'s sickness claims at school, however, was unaware of an incident when N.V.M. was placed in a wheelchair. Gaucin believed Mother met with N.V.M.'s teacher each time Mother picked the child up from school but knew Mother met with the teacher every three weeks for parent-teacher conferences.

Gaucin stated Mother and N.V.M. spent a lot of time together. During Gaucin's interactions with N.V.M., the child was bathed, clean, and wore different clothes. Mother and N.V.M. attended church together weekly with Gaucin and Gaucin was unaware of any claims involving Mother and witchcraft. In addition, she stated that an electrical malfunction caused the fire at Mother's residence. Gaucin had not seen the child interact with Father, however, she had previously seen Father smoke marijuana.

3. The Parents

Mother also testified at the hearing. She and N.V.M. lived with Mother's mother, who then had cancer. Mother worked as a housekeeper, cleaning the house across the street from her residence. She worked 9:00 a.m. to 2:00 p.m., Monday through Friday, and was paid minimum wage. She had been fired from her previous employer for Family and Medical Leave Act (FMLA) violations. In addition, she had been charged with assault after an altercation with Father and, as a result, was taking anger management classes.

Mother explained a "tea candle" caused the fire at her home. Mother explained that the fire had been ruled an accident. She also denied any allegations that she engaged in any sort of witchcraft. Mother acknowledged Santillan had been called to pick N.V.M. up from school when the school was unable to reach her. Mother explained she was unavailable because she was at the doctor with her mother. She also took N.V.M. to the doctor when she found out N.V.M. was vomiting on purpose at school. N.V.M. was not sick and the doctor informed Mother that the child's conduct could be a result of the divorce proceedings and circumstances. In addition, *512Mother believed the only way to explain why N.V.M. ended up in a wheelchair at school was because N.V.M. had previously seen Mother dislocate her knee. Mother denied that N.V.M. defecated himself.

Mother believed under an agreement with the school, which both she and Father signed, Father was not allowed to be on the emergency contact list. She stated that Santillan offered to give the child a ride once and denied Santillan's suggestion that the child had poor hygiene, explaining that the child bathed daily and wore a uniform to school. Mother visited with the N.V.M.'s school teacher several times a week and understood that his reading abilities needed improvement. She explained that she loved her son. She and N.V.M. read every day, cooked together, in addition to a variety of other activities. While she did not have much money, she nevertheless makes the best of their time together. She did not understand why Father was petitioning for sole custody and explained that in doing so, Father would turn N.V.M. against her. Mother stated that N.V.M. informed her that there is a lack of discipline at Father's house and that they "let [N.V.M.] do whatever."

Mother further testified that she did not prohibit N.V.M. from calling Father or Father's parents, however, they never answer when they "see [her] number." Mother denied ever physically harming the child despite several inquiries from CPS and explained that when disciplining the child, they have a conversation. Mother was unaware why N.V.M. had bumps on his head on an occasion when Father took N.V.M., and each of the CPS cases involving N.V.M. had been closed. She testified that Father was not current on his child support payments.

Father testified that he was seeking sole possession of the child and, in the alternative, the right to designate the child's primary residence should the trial court appoint them both as joint managing conservators. He was a medical assistant working for several eye doctors and was in the process of getting a real estate license. Father lived in Canutillo and explained that he had a room available for N.V.M. at his home.

Father stated that Mother's sister had informed him that Mother was "into witchcraft" which included different candles and oils and he once saw the candles and oils when visiting Mother's house. In addition, Father testified Mother had hit him.

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553 S.W.3d 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-gonzalez-texapp-2018.