Burney v. Burney

• Decision Date: 12 January 2006
• Docket Number: No. 08-03-00465-CV.,08-03-00465-CV.
• Citation: 225 S.W.3d 208
• Parties: Donald B. BURNEY, Appellant, v. Yvette Johnson BURNEY, Appellee.
• Court: Texas Court of Appeals

225 S.W.3d 208

Donald B. BURNEY, Appellant, v. Yvette Johnson BURNEY, Appellee.

No. 08-03-00465-CV.

Court of Appeals of Texas, El Paso.

January 12, 2006.

Jack Lawson Coke, Jr., Richardson, TX, for Appellant.

Lorenzo Brown, De Soto, TX, for Appellee.

Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

DAVID WELLINGTON CHEW, Justice.

In this appeal from a final divorce decree, Donald B. Burney challenges the trial court's discretion in determining the child visitation schedule, the child support payment, and the division of community property. We affirm in part, reverse in part.

Donald and Yvette Burney were married on July 31, 1998 and were separated on or about December 8, 2000. Out of their marriage, one child was born on March 16, 1999; a daughter by the name of Savannah Burney. Mrs. Burney filed for divorce on December 11, 2000. Mr. Burney filed an original answer and counter-claim for divorce on December 27, 2000.

At the time the divorce was filed, Mrs. Burney, along with Savannah, resided in the home that was purchased while Mr. and Mrs. Burney were married which was located at 717 Teresa Drive, DeSoto, Texas. At trial, Mrs. Burney testified that this home was foreclosed on October 2, 2002. She stated that there was a court order directing her to pay the mortgage on the residence, but that she was unable to do so because Mr. Burney placed a code on the Wells Fargo account, preventing her access. She stated that she did not attempt to send him a check for the mortgage, but rather tried to pay it as she normally would, making the payment directly to the bank. This code was placed on the account sometime in May 2001. She believed that they had paid $155,000 for the home and that Mr. Burney had made a down payment of $16,000 from savings he had accumulated prior to their marriage. She stated that there was a second mortgage on the residence held by Bank One. She was able to make a deal with Bank One with regard to the balance due on the account, which was approximately $10,000. She offered to buy the house for $165,000 and the offer had been accepted the day before the hearing; she stated that she did not know how much of a down payment she was going to give on the house, but that the money would be coming from a family loan. For the duration of their separation until the date of the hearing, Mrs. Burney has been living in the house.

At the bench trial, Joseph Pickett, a certified public account, testified as to his findings of an audit he conducted of Mr. Burney's assets as was ordered by the court¹. He stated that he had attempted several times to gather the documents necessary to perform the audit from Mr. Burney. He made about five or six requests, some in writing, some oral, for these documents. His initial request was submitted in writing on August 2002. The documents he requested were Mr. Burney's bank statements, personal investment statements, income and business statements, and W-2 forms. Based on the information he was able to gather, Mr. Pickett testified that he was able to determine that in 2001, Mr. Burney deposited approximately $62,000 into his personal bank account. Mr. Pickett chose the year 2001 because it was for this year that he had the most complete information and he had a reasonable number of bank statements as well. He stated that if Mr. Burney had additional bank accounts, he did not have access to any of that information. Mr. Pickett testified that in 2001, there was difference of approximately $10,000 in the amount of money that was reported from Mr. Burney's partnership and the amount that was deposited into his personal account.

Mr. Burney testified that he is a shareholder at the accounting firm Burney, McClellan, and Associates. He stated that he was aware Mr. Pickett was ordered by the court to examine his books and records. He also stated that he had advance notice of the documents Mr. Pickett needed to examine and that he made available to Mr. Pickett all of the records he had. He stated that there may have been a few bank statements that he did not have, but he offered to authorize access to these records at the bank for Mr. Pickett. He stated that some of these documents were also available online, but he did not print out these documents or ask for copies at the bank because he did not want to incur the costs of producing them. He believed Mr. Pickett was lying about the availability of such documents because he was not a very competent CPA. He provided testimony regarding his assets and the community indebtedness, but testified that he could not account for the deposits made in excess of his monthly salary that were discovered by Mr. Pickett.

After a bench trial was held on February 20, 2003 and March 18, 2003, the trial court signed the final divorce decree on June 13, 2003. The trial court named Mr. and Mrs. Burney joint managing conservators; ordered a standard visitation schedule for Mr. Burney; ordered Mr. Burney to pay $563.80 of monthly child support; awarded Mr. Burney a $16,000 lien on their home located on 717 Teresa; and provided for the division of the remaining marital estate. Mr. Burney filed a motion for new trial in which he raised the same issues before this Court on appeal. After a hearing, the trial court entered an order granting in part and denying in part Mr. Burney's motion and entered modifications on the issue of the division of the community estate and indebtedness on August 29, 2003. Upon Mr. Burney's request, the trial court entered Findings of Fact and Conclusions of Law. Mr. Burney now timely brings this appeal.

DISCUSSION

Visitation Schedule

In Issue One, Mr. Burney asserts that the trial court abused its discretion by failing to order the expanded visitation schedule he requested and which Mrs. Burney did not oppose. Mr. Burney asserts that although he provided the trial court with testimony regarding his close relationship with Savannah, and his participation in her school work and school activities, the trial court arbitrarily refused to grant his requested visitation schedule. Mr. Burney's requested visitation schedule is as follows:

1. Court ordered visitation with the Respondent every Wednesday, commencing at 4:00 p.m. and terminating with the child's return on Thursday morning for school or to the Petitioner as appropriate with the school year.

2. Court ordered visitation with the Respondent the first, third, and fifth Friday, commencing at 4:00 p.m. and terminating with the child's return on Monday morning for school or to the Petitioner as appropriate with the school year.

3. Court ordered summer visitation with the Respondent, at his option, after reasonable notice to the Petitioner, for a total period of one month in the summer of each year, to be exercised by him in one week or two week segments, but with the option to be allowed a period of four consecutive weeks in the summer for visitation.

The trial court awarded the standard possession order applicable in both instances where Mr. Burney resides 100 miles or less from Savannah and where he resides more than 100 miles apart.

Standard of Review

A trial court has wide discretion in determining the best interest of a child in family law matters such as custody, visitation, and possession. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). The best interest of the child is the primary consideration in determining conservatorship and possession of and access to the child. TEX.FAM.CODE ANN. § 153.002 (Vernon 2002). Additionally, joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators. Tex.Fam.Code Ann. § 153.135. The standard possession order provided by Sub-chapter F constitutes a presumptive minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not awarded the primary physical residence of the child in a suit. Tex.Fam.Code Ann. § 153.137 (Vernon Supp.2005).

Contrary to Mr. Burney's assertion in his appellate brief that he provided explicit testimony regarding his relationship with Savannah, upon a close examination of the record, we find that the majority of Mr. Burney's testimony revolved around the issue of the division of property. Mr. Burney did testify as to the visitation schedule he was requesting. He testified that he picked Savannah up from school every Wednesday between the hours of 4 p.m. and 6 p.m. and then dropped her off at school the next school day; he also picked her up between 4 p.m. and 6 p.m. every third and fifth Friday of the month and then dropped her back off at school the next school day. Mrs. Burney said she did not have a problem continuing the current visitation schedule, including Mr. Burney picking up Savannah after school on Wednesday and returning her back to school the next morning. Further, she did not request any restrictions for the visitation schedule.

Mrs. Burney also testified as to a specific incident that occurred sometime in October 2002 that resulted in Mr. Burney being arrested for committing family violence. According to Mrs. Burney, Mr. Burney had picked Savannah up, had gone to their home and refused to leave. She called the police and shortly thereafter, two police officers and two sheriff officers arrived at her home. Mr. Burney then ran out of the house with Savannah in his arms, but was stopped before he was able to get into his vehicle. While the police officers were asking him to put Savannah down, Mrs. Burney seeing Savannah cry, reached out for her; Mr. Burney then lifted his fist in the air and hit Mrs. Burney. All this occurred in front of the police and Mr. Burney was then arrested. Since that occasion however, she stated that there have been no other incidents involving family violence.

Additionally, there was another incident in which she was the party who committed the family violence. While the details...