Matter of Marriage of Bertram

981 S.W.2d 820, 1998 Tex. App. LEXIS 6448, 1998 WL 720008
CourtCourt of Appeals of Texas
DecidedOctober 16, 1998
Docket06-97-00101-CV
StatusPublished
Cited by57 cases

This text of 981 S.W.2d 820 (Matter of Marriage of Bertram) 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
Matter of Marriage of Bertram, 981 S.W.2d 820, 1998 Tex. App. LEXIS 6448, 1998 WL 720008 (Tex. Ct. App. 1998).

Opinion

OPINION

GRANT, Justice.

David Scott Bertram appeals from a Final Decree of Divorce ending his marriage to Anita Dorene Bertram. David challenges the legal and factual sufficiency of the evidence to support the trial court’s findings of fact and conclusions of law on the issues of custody, visitation, child support, and travel expense responsibility.

David contends that the trial court abused its discretion: (1) by appointing Anita as Sole managing conservator because Anita did not rebut the presumption of Joint managing conservatorship and because the evidence did not support her appointment as Sole managing conservator; (2) by not appointing David as Sole managing conservator because he successfully rebutted the presumption of Joint managing conservatorship; (3) by not appointing David and Anita as Joint managing conservators, because neither David nor Anita rebutted the presumption in favor of Joint managing conservatorship; (4) by ordering David to pay child support in an amount which exceeded the percentage of income set out in the statutory guidelines; ( 5) by deviating from the standard possession order set out in the statutory guidelines and thereby ordering David to pay all costs associated with the children’s travel for visitation.

Evidence presented at trial showed that David and Anita Bertram were married on April 11, 1993, in Universal City, Texas. In late 1993, the Bertrams moved to Wisconsin, Anita’s home state, where David attended a pre-seminary program at Northwestern Col *822 lege. Soon after the move, Anita learned she was pregnant, and she left David and moved in with her parents. The Bertrams later reconciled, and on April 17, 1994, their twin sons were born.

During the next year, David attended college full time and worked full time while Anita stayed home with the children. After David finished his degree, the Bertrams moved to Scroggins, Franklin County, Texas, where David began working for Pittsburg Motors.

In May 1996, Anita and the children returned to Wisconsin. Anita testified that she and David had agreed that she would visit her family in Wisconsin with the understanding that David would follow when he found a job in Wisconsin. David testified that Anita left for a visit and later decided not to return to Texas. David also testified that Anita refused to allow him to visit her and the children and threatened to take the children away if he tried to visit.

On May 28, 1996, David filed his Petition for Divorce and Custody in Franklin County. On June 10, 1996, upon receipt of David’s divorce petition, Anita filed for divorce in Wisconsin. In her petition for divorce, Anita stated that she was a six-month resident of Wisconsin. Anita also attempted to obtain a temporary restraining order preventing David’s access to her and the children. The Franklin County, Texas, court assumed jurisdiction over the matter, and the Wisconsin court dismissed Anita’s divorce action. On June 17, 1996, the court entered temporary orders giving David custody of the children.

Between May 1996 and the time of trial, David made several attempts at reconciliation. David and Anita attended marital counseling. Trial began on November 26, 1996. Two days into testimony, the trial court ordered David and Anita to attend the Bill Gothard Family Conference “in an effort to bring about reconciliation of the marriage.”

Trial reconvened on March 17, 1997. The trial court signed the Final Decree of Divorce on May 30,1997. Findings of Fact and Conclusions of Law were filed. The final decree appointed Anita Sole managing conservator of the children, ordered David to pay $426 per month child support, and ordered David to pay all costs associated with the children’s travel between Wisconsin and Texas.

Conservatorship

David challenges the legal and factual sufficiency of the trial court’s findings regarding conservatorship.

The trial court’s determination of conservatorship is reviewed under an abuse of discretion standard. 1 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. 2

The court’s primary consideration in determining conservatorship, possession, and access is the best interest of the child. 3 The Family Code does not set out factors to be considered in determining the best interest of children. However, the Texas Supreme Court, in Holley v. Adams, 4 has set out the following factors to be considered in deciding the issue:

(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of" the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a *823 proper one; and (I) any excuse for the acts or omissions of the parent. 5

The trial court shall consider the qualifications of the parties without regard to their marital status or to the gender of the party or the child in determining which party to appoint as sole managing conservator, whether to appoint joint managing conservators, and the terms and conditions of conservator-ship, possession, and access. 6 The trial court may appoint a sole managing conservator or joint managing conservators. 7 In 1995, the Legislature enacted a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. 8

Finding of Violent Nature

David’s first challenge is to the trial court’s finding that he “exhibited, by his actions during the marriage, acts of a violent nature in the presence of his wife and children.” He argues that this finding is based on Anita’s “uncorroborated, vague testimony” and that such testimony is nothing more than bare assertions without any corroborating evidence. A bare assertion without more specific testimony is no more than a mere scintilla of evidence. 9 In the present ease, Anita testified to specific instances regarding David’s behavior.

Anita testified that David has a violent nature and temper. She testified:

• that David hit things and threw things;

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re C.J.S., a Child v. the State of Texas
Court of Appeals of Texas, 2024
Miguel Martinez v. Lilia Martinez
Court of Appeals of Texas, 2022
Katie Schmidt v. Daron Nelson
Court of Appeals of Texas, 2019
in the Interest of T. L. C ., a Child
Court of Appeals of Texas, 2018
in the Interest of L.M., a Child
Court of Appeals of Texas, 2018
in the Interest of D.J.E. and L.T.E., Children
Court of Appeals of Texas, 2013
in the Interest of N.T.P. and L.C.P., Children
402 S.W.3d 13 (Court of Appeals of Texas, 2012)
Tellez v. Tellez
345 S.W.3d 689 (Court of Appeals of Texas, 2011)
Johnathan Pena v. Lauren Stoddard
Court of Appeals of Texas, 2011
in the Interest of J.M.C., a Child
Court of Appeals of Texas, 2010
In the Interest of A.D.A. and S.L.A., Children
287 S.W.3d 382 (Court of Appeals of Texas, 2009)
In Re ADA
287 S.W.3d 382 (Court of Appeals of Texas, 2009)
in the Interest of T.L.S. and R.T.S., Children
Court of Appeals of Texas, 2009

Cite This Page — Counsel Stack

Bluebook (online)
981 S.W.2d 820, 1998 Tex. App. LEXIS 6448, 1998 WL 720008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-marriage-of-bertram-texapp-1998.