Baker v. Baker

• Decision Date: 25 June 2015
• Docket Number: NO. 14–14–00083–CV,14–14–00083–CV
• Citation: 469 S.W.3d 269
• Parties: Sarah Lansden Baker, Appellant v. Mark Mitchell Baker, Appellee
• Court: Texas Court of Appeals

469 S.W.3d 269

Sarah Lansden Baker, Appellant

v.Mark Mitchell Baker, Appellee

NO. 14–14–00083–CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed June 25, 2015.

Pamela E. George, Patricia A. Wicoff, Houston, TX, for appellant.

Cali Schwarz, Lynn Kuriger Stanton, Houston, TX, for appellee.

Panel consists of Justices Christopher, Donovan, and Wise.

OPINION

Tracy Christopher, Justice

This is an appeal from a judgment of divorce between Sarah Baker (“Mother”) and Mitch Baker (“Father”), who are parents to two young children. Mother asks us to consider three issues: (1) whether the trial court erred by appointing Father as a joint managing conservator when the evidence established that Father has a history of family violence against Mother, (2) whether the trial court abused its discretion by imposing death penalty sanctions against Mother in her tort actions against Father, and (3) whether the trial court abused its discretion by granting the divorce on the basis of insupportability instead of cruelty. Father also raises a cross-point, arguing that we lack appellate jurisdiction because Mother filed an untimely notice of appeal.

We conclude that we have appellate jurisdiction. We further conclude that the trial court erred in its conservatorship ruling and in its decision to impose death penalty sanctions. We reverse the trial court's judgment in part and remand for a new trial on conservatorship and on Mother's tort actions against Father. Because Mother's tort actions present a risk of a double recovery, we also remand for a new division of the community estate. In all other respects, we affirm the trial court's judgment.

BACKGROUND

The record shows that this was a troubled marriage. There were financial difficulties, problems with addiction, and allegations of infidelity. The tipping point for Mother occurred when Father punched her in the face. The blow knocked Mother to the ground and broke at least two bones in her skull. Surgery was needed to save Mother's eye.

Mother filed for divorce, seeking sole managing conservatorship of the children. She also asserted several torts against Father, including assault, battery, terroristic threats, and intentional infliction of emotional distress. Mother sought exemplary damages in connection with these torts, but the trial court struck them all as a sanction for discovery abuse.

During the non-jury trial, Mother testified that Father is an alcoholic. She also produced evidence that Father has a history of abuse that goes beyond the punch that precipitated this divorce. Mother asserted, for instance, that Father has pushed her, thrown a chair at her, spat on her, and called her derogatory names in front of the children. Father denied some of these assertions, but he does not dispute that he punched Mother.

The trial court rendered a final decree of divorce appointing both parents as joint managing conservators, with Mother having the primary right to designate the children's residence. The court also signed findings of fact and conclusions of law. One of the findings specifically addresses the issue of family violence. It says: “Family violence has occurred in the past but the court declines to find that it is likely to occur in the future.” In a separate finding and conclusion of law, the court determined that joint managing conservatorship is in the best interests of the children.

APPELLATE JURISDICTION

Before we address the merits of Mother's appellate complaints, we must first determine whether this court has jurisdiction over her appeal. Neither party raised the question of jurisdiction in its original brief, but during oral argument, Father suggested that we lacked jurisdiction because Mother's notice of appeal was untimely. We have an independent duty to confirm that we have jurisdiction, and both parties have submitted post-submission briefs addressing this threshold question.

In most cases, a notice of appeal must be filed within thirty days after the date of judgment. See Tex. R. App. P. 26.1. If the notice of appeal is untimely, the reviewing court lacks jurisdiction and must dismiss the case. See Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, LLP, 404 S.W.3d 75, 80 (Tex.App.–Houston [14th Dist.] 2013, no pet.).

Here, the trial court signed a “Final Decree of Divorce” on September 7, 2013. Pursuant to several post-judgment motions, the court signed a “Reformed Final Decree of Divorce” on December 18, 2013. Under the thirty-day deadline, Mother had until January 17, 2014, to file her notice of appeal. Mother filed her notice of appeal six days after that deadline, on January 23.

Rule 26.1(a) of the Rules of Appellate Procedure provides that a party has ninety days to file a notice of appeal, instead of the traditional thirty days, if any party files a motion for new trial, a motion to modify the judgment, a motion to reinstate, or a request for findings of fact and conclusions of law. Mother filed a request for findings of fact in this case, but only after the “Final Decree of Divorce,” not the “Reformed Final Decree of Divorce.” After the reformed decree, Mother moved solely for a de novo hearing from the referring court.

In his post-submission brief, Father argues that Mother's motion for a de novo hearing is insufficient to trigger the ninety-day deadline provided by Rule 26.1(a). We need not decide this particular question because the rules provide a separate means for perfecting the appeal.

Under Rule 26.3, we may extend the time to file a notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, a party files the notice of appeal in the trial court and a motion in the appellate court requesting the extension. See Tex. R. App. P. 26.3. Father contends that Mother never filed a motion to extend time that complied with our rules, but our records indicate that she did. Mother filed her motion in our court on January 27, 2014, which was within the fifteen-day window, and we granted the motion on May 1, 2014. We accordingly conclude that Mother perfected her appeal and that we have appellate jurisdiction.

CONSERVATORSHIP

In Mother's first issue, we must determine whether the trial court erred by appointing Father as a joint managing conservator.

I. Analysis

The best interests of the children must always be the primary consideration when determining issues of conservatorship. See Tex. Fam. Code § 153.002. The trial court is afforded great discretion when making such determinations, and we review the trial court's decision for an abuse of that discretion. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982) ; In re A.L.E., 279 S.W.3d 424, 427 (Tex.App.–Houston [14th Dist.] 2009, no pet.). The trial court abuses its discretion when its decision is arbitrary, unreasonable, or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). Because the trial court has no discretion when determining the applicable law, the trial court also abuses its discretion when it fails to analyze the law correctly and apply it to the facts of the case. See Bradford v. Pappillion, 207 S.W.3d 841, 844 (Tex.App.–Houston [14th Dist.] 2006, no pet.).

The law presumes that the appointment of both parents as joint managing conservators is in the best interests of the children. See Tex. Fam. Code § 153.131(b). That presumption is removed, however, if the trial court makes a finding of a history of family violence. Id.

Section 153.004 of the Family Code provides specific instructions whenever a trial makes a finding of past violence. Subsection (b) states, “The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child ...” Id. § 153.004(b).

Mother contends that Section 153.004(b) precludes Father from being a joint managing conservator because credible evidence was presented that Father has a history of being physically abusive. We agree. By making an express finding of family violence, the trial court determined that the evidence of physical abuse was credible in this case. Even though the trial court described its finding in the passive voice, we can deduce that the trial court attributed the violence to Father and not to Mother. Father's role in the punching incident was uncontested and there was no evidence presented that Mother has ever been violent.

Father responds that the trial court's finding is not dispositive. He contends that Section 153.004(b) is applicable only when there is an express finding of a “history or pattern of past or present child neglect, or physical or sexual abuse.” Father suggests that the trial court's more general finding of “family violence” does not qualify under the statute.

“Family violence” is a specially defined term under the Family Code. It means “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault.” Id. §§ 71.004, 101.0125. “Physical abuse” is undefined, which means that we construe it according to its common usage. See Tex. Gov't Code § 311.011(a). “Abuse” can have many definitions, but in the context of person-to-person contact, it means “physical maltreatment.” See Webster's Ninth New Collegiate Dictionary 47 (1984). Based on the broad meanings of both terms, we conclude that an act by one spouse that is intended to result in bodily injury to the other spouse, and actually results in bodily injury to the other spouse, qualifies as both family violence and physical abuse. We reject Father's argument that the trial court's finding of family violence is insufficient to trigger the effects of Section 153.004(b).

Father also argues that, as a matter of law, there was no “history” of physical abuse because the punching incident was...