Rocky Benton Kimbell v. April Kathleen Kimbell

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00202-CV

ROCKY BENTON KIMBELL APPELLANT

V.

APRIL KATHLEEN KIMBELL APPELLEE

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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 2012-10583-16

MEMORANDUM OPINION 1

This appeal stems from the trial court’s divorce decree and order in suit

affecting the parent-child relationship (SAPCR). In the final decree, the trial court

appointed the parents joint managing conservators (JMCs) of the children and

designated Appellee April Kathleen Kimbell (Mother) as the JMC with the

1 See Tex. R. App. P. 47.4. exclusive right to determine the primary residence of the former couple’s two

minor children. Appellant Rocky Benton Kimbell (Father) timely appealed,

challenging Mother’s designation as JMC. Because we hold that Father invited

the alleged error he complains of, we affirm.

Mother and Father began dating and living together in 2002. In 2004,

Mother was accepted into nursing school and ended the relationship. She then

began dating another man (Husband One) and subsequently married him. The

marriage lasted two weeks. Shortly after Mother learned that Husband One

already had another wife and child in Mexico, she threw a plastic coat hanger at

him. Mother was arrested and charged, but she testified that the charge was

later dismissed due to lack of evidence.

Mother and Father began dating again in the summer of 2006, and they

married in August 2007. Their two children were born in 2008 and 2011,

respectively. Father testified that in June 2012, Mother bloodied his lip and left

scratches on his neck, but he did not seek medical attention. He did file a police

report with the Carrollton Police Department. Mother testified that she was not

arrested for that incident but was convicted of Class C Assault. 2 She also

testified that the conviction was being appealed at the time of the divorce and

SAPCR trial. In addition to naming her JMC with the exclusive right to determine

the primary residence of the children, the trial court also ordered Mother to attend

2 See Tex. Penal Code Ann. §22.01(a)(2)–(3), (c) (West Supp. 2014).

2 anger management class and to submit proof thereof to the court. The trial court

ordered Father to childproof the home of his grandparents, where he would stay

during his periods of possession of the children, and to submit proof thereof. The

trial court ordered both parents to abstain from drinking during their respective

periods of possession of the children.

In his sole issue, Father contends that the trial court abused its discretion

by appointing Mother JMC because credible evidence was presented of a history

or pattern of past or present physical abuse by Mother against Father as well as

against Husband One. 3 But Father’s live petition provides, “Petitioner and

Respondent, on final hearing, should be appointed joint managing conservators,

with all the rights and duties of a parent conservator.” The invited error doctrine

prevents a party from asking for relief from the trial court and later complaining

on appeal that the trial court gave it. 4 We therefore overrule Father’s sole issue.

Having overruled Father’s sole issue, we affirm the trial court’s judgment.

3 See Tex. Fam. Code Ann. § 153.004(b) (West 2014). 4 Swain v. Hutson, No. 02-09-00038-CV, 2009 WL 3246750, at *6 (Tex. App.—Fort Worth Oct. 8, 2009, pet. denied) (mem. op.); McKee v. McKee, No. 02-06-00436-CV, 2008 WL 110112, at *4 (Tex. App.—Fort Worth Jan. 10, 2008, no pet.) (mem. op.); Clopton v. Airport Marina Hotel, Inc., No. 02-05-00055-CV, 2006 WL 2309638, at *3–4 (Tex. App.—Fort Worth Aug. 10, 2006, pet. denied) (mem. op.), cert. denied, 552 U.S. 893 (2007); see also Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321–22 (Tex. 1984) (“By filing its motion that the trial court render judgment on the verdict for the actual damages found by the jury, Litton could not, on appeal, take a position inconsistent with that part of the judgment.”).

3 /s/ Lee Ann Dauphinot LEE ANN DAUPHINOT JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: August 6, 2015