Van Heerden v. Van Heerden

321 S.W.3d 869, 2010 Tex. App. LEXIS 7137, 2010 WL 3406631
CourtCourt of Appeals of Texas
DecidedAugust 31, 2010
Docket14-09-00708-CV
StatusPublished
Cited by36 cases

This text of 321 S.W.3d 869 (Van Heerden v. Van Heerden) 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
Van Heerden v. Van Heerden, 321 S.W.3d 869, 2010 Tex. App. LEXIS 7137, 2010 WL 3406631 (Tex. Ct. App. 2010).

Opinion

OPINION

JEFFREY V. BROWN, Justice.

Appellant Ann E. Van Heerden appeals the trial court’s judgment of the final divorce decree between herself and appellee Casper J. Van Heerden. Ann specifically appeals the sections of the decree concerning conservatorship, travel restrictions, and the division of the marital estate. Ann contends that: (1) the trial court erred in deciding Casper should be primary joint managing conservator of the children because the parties had an unrevoked stipulation that Ann would be primary conservator; (2) Ann was deprived of her due-process rights because the trial court’s judgment was contrary to the parties’ stipulation; (3) the trial court erred because it violated the parties’ stipulation, which Ann argues was an effective Rule 11 agreement; (4) the trial court abused its discretion in awarding primary conservatorship to Casper because there was no evidence or pleadings supporting the judgment; (5) the trial court abused its discretion by including travel restrictions in the final divorce decree; (6) the trial court erred in striking the testimony of Ann’s three fact witnesses on the basis that Ann’s disclosure responses did not conform with Texas Rule of Civil Procedure 194.2(e); and (7) the trial court abused its discretion because in dividing the marital estate, the court used incorrect property values. We affirm in part, and reverse in part, and remand for further proceedings consistent with this opinion.

I

Ann and Casper met in 1986 and were married on March 24, 1990. During the nineteen-year marriage, the couple had three children, E.A.V., born December 10, 1997; A.M.V., born June 3, 2000; and A.E.V., born November 15, 2004. The Van Heerdens separated on May 31, 2008, and they were granted a divorce on March 25, 2009.

Casper is a citizen of Botswana, South Africa. The couple met in Botswana while Ann was volunteering with the Peace Corps. Two years later, they moved to the United States and were married shortly thereafter. Ann and Casper lived in Texas while Ann finished graduate school before moving to Wisconsin. Twelve years later, the Van Heerdens moved back to Texas where they resided until this suit was filed.

On June 13, 2008, Ann filed her original petition for divorce and subsequently filed her amended petition on December 9, 2008. Casper filed a counterpetition on July 2, 2008, and an amended counterpetition for divorce on March 16, 2009. After a three-day bench trial, the trial court rendered a judgment dissolving the Van Heerdens’ marriage, dividing the Van Heerdens’ marital estate, and naming Cas-per the primary joint managing conservator of the children. The trial court signed the final decree of divorce on May 15, 2009. The trial court also made findings of fact and conclusions of law. This appeal followed.

II

Ann’s first six issues on appeal concern her conservatorship rights. In her first and third issues, Ann complains that the trial court erred because its judgment conflicted with the parties’ unrevoked stipulation or Rule 11 agreement that Ann would be the primary joint managing conservator. Additionally, in her second issue, she contends that under section 153.007 of the Texas Family Code, if the *874 court did not agree with the parties’ stipulation, then it needed to give the parties notice and an opportunity to present evidence about conservatorship. In her fourth issue, Ann argues that the trial court abused its discretion in awarding primary conservatorship to Casper because there was no evidence or pleadings supporting the judgment. In her fifth issue, Ann asserts that the trial court abused its discretion because it included travel restrictions in the final divorce decree that were not pleaded by either party. Finally, in her sixth issue, Ann contends that the trial court erred in striking the testimony of her three fact witnesses on the basis that Ann’s disclosure responses did not conform to Texas Rule of Civil Procedure 194.2. On these issues, Ann requests that we either render a judgment designating Ann as primary joint managing conservator with the right to choose the primary domicile for the children or reverse and remand the issues back to the trial court for a new trial.

Casper argues that there never was an agreed stipulation or a Rule 11 agreement naming which parent was going to be the primary conservator; therefore, Ann’s due process rights were not violated. Even if there were a stipulation, Casper contends that the court could have decided that the agreement was not in the best interest of the children. Next, Casper asserts that there was sufficient evidence for the trial court to name him primary joint managing conservator, and it was in the best interest of the children for the trial court to make that decision. In response to Ann’s fifth issue, Casper argues that the trial court did not abuse its discretion in restricting the children’s travel or in allowing Casper to possess the children’s passports because evidence was introduced at trial that these restrictions would be in the best interest of the children. Finally, Casper contends the trial court did not abuse its discretion in excluding Ann’s witnesses because her disclosure responses were insufficient, and the court’s discovery sanctions were appropriate.

A

We must decide whether Ann’s request for this court to render judgment in her favor is the appropriate remedy. When reversing the trial court’s judgment or appealable order, we typically render the judgment or order that the trial court should have rendered. See Tex.R.App. P. 43.3; In re AS., 261 S.W.3d 76, 93 n. 19 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); Colbert v. Dep’t of Family & Protective Servs., 227 S.W.3d 799, 816 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Appellate courts, however, can remand a case when further proceedings are necessary or when the interest of justice requires another trial. Tex.R.App. P. 43.3. This is often the case in situations that require reweighing evidence or finding facts. Although appellate courts can un-find facts, they are not fact-finding courts. See Parsons v. Parsons, 722 S.W.2d 751, 753 (Tex.App.-Houston [14th Dist.] 1986, no writ).

In determining conservatorship issues, trial courts focus on the best interest of the child. Vazquez v. Vazquez, 292 S.W.3d 80, 85 (Tex.App.-Houston [14th Dist.] 2007, no pet.). A trial court has wide latitude or discretion in deciding what is in the child’s best interest. Id. Additionally, custody disputes are inherently fact-intensive. In re Vogel, 261 S.W.3d 917, 925 (Tex.App.-Houston [14th Dist.] 2008, no pet.). We routinely defer to the fact-finder in matters of credibility and demeanor, and particularly so in custody proceedings. Id. We have previously stated in cases involving involuntary termination of parental rights that appellate courts are “not in a position to determine whether simply to deny the petition for *875 termination or render some other order in the best interest of the child.”

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Bluebook (online)
321 S.W.3d 869, 2010 Tex. App. LEXIS 7137, 2010 WL 3406631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-heerden-v-van-heerden-texapp-2010.