E.C. Jr. & S.C. v. Graydon

• Decision Date: 31 August 2000
• Docket Number: No. 13-99-137-CV,13-99-137-CV
• Citation: 28 S.W.3d 825
• Parties: (Tex.App.-Corpus Christi 2000) E. C., JR. AND S. C., MINOR CHILDREN, BY AND THROUGH THEIR GUARDIAN AD LITEM, LILIA A. GONZALES, Appellants, v. GEORGE GRAYDON AND ISABEL GRAYDON, Appellees
• Court: Texas Court of Appeals

Page 825

28 S.W.3d 825 (Tex.App.-Corpus Christi 2000)

E. C., JR. AND S. C., MINOR CHILDREN, BY AND THROUGH THEIR GUARDIAN AD LITEM, LILIA A. GONZALES, Appellants, v. GEORGE GRAYDON AND ISABEL GRAYDON, Appellees.

No. 13-99-137-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS, CORPUS CHRISTI

August 31, 2000

On appeal from the 103rd District Court of Cameron County, Texas.

Before Justices Hinojosa, Chavez, and Rodriguez.

OPINION

Opinion by Justice Hinojosa.

Appellants, E.C., Jr. and S.C., minor children, by and through their guardian ad litem, Lilia A. Gonzales, appeal from the trial court's judgment in a Suit Affecting the Parent-Child Relationship. The biological parents of E.C., Jr. are E.C., Sr. and Elvia Zavala. E.C., Sr. was appointed Managing Conservator of E.C., Jr. when Elvia Zavala's parental rights were terminated. E.C., Sr. married Maria Sanchez (Maria) in 1989. In 1990, S.C. was born to Maria and E.C., Sr. Appellees, George and Isabel Graydon are the paternal grandparents of E.C., Jr. and S.C. In 1992, E.C., Sr. was sentenced in New York to three life sentences in prison.

By three issues, appellants contend: (1) the trial court erred in denying a continuance to Maria's attorney; (2) the trial court erred in signing a judgment which denied E.C., Jr. the right to spend Mother's Day with Maria; and (3) the trial court erred and abused its discretion by awarding the Graydons a standard possession order, rather than reasonable access to S.C.

As to E.C., Jr., we affirm the trial court's judgment. As to S.C., we reverse the trial court's judgment that the Graydons have a standard possession order and remand that part of the case to the trial court for further proceedings consistent with this opinion.

1. Background and Procedural History

On August 13, 1996, the Graydons filed their First Amended Original Petition in Suit Affecting Parent-Child Relationship. In the petition, the Graydons sought managing conservatorship of E.C., Jr. and possessory conservatorship of S.C. E.C., Sr., by affidavit, consented to the filing of the action.

On August 14, 1996, the trial court issued temporary orders appointing Maria Temporary Managing Conservator of E.C., Jr., and Isabel Graydon Temporary Possessory Conservator. On August 19, 1996, the trial court appointed Janet Leal guardian ad litem of E.C., Jr. and S.C. On December 17, 1996, the case was set for a jury trial on March 10, 1997. At the time, Maria's attorney of record was Ben Neece. The case was continued several times, and on November 24, 1998, the case was set for trial on February 16, 1999.

On November 30, 1998, Ben Neece filed a motion to withdraw as counsel. On December 31, 1998, Janet Leal filed a motion to withdraw as the children's guardian ad litem. The court granted Leal's motion on January 5, 1999, and Neece's motion on January 7, 1999. The trial court appointed Lilia Gonzales as the children's guardian ad litem on January 15, 1999. On February 12, 1999, Louis Sorola appeared as counsel for Maria and requested a continuance so that he could prepare for the trial since he had just been retained. The trial court denied the motion.

On February 19, 1999, the jury returned a verdict finding that the Graydons should be appointed Sole Managing Conservators of E.C., Jr. The trial court appointed the Graydons Sole Managing Conservators of E.C., Jr., and appointed Maria Sole Possessory Conservator of E.C., Jr. The trial court also appointed Maria Sole Managing Conservator of S.C., and gave the Graydons grandparent access to S.C.

2. Motion For Continuance of Maria Sanchez

In their first issue, appellants assert the trial court erred in denying Maria's motion for continuance. Appellants complain it was an abuse of discretion for the trial court to deny the continuance because the court allowed Maria's attorney to withdraw one month before trial, and because her economic situation made it difficult to retain a new attorney. Appellants contend the trial court should have granted Maria's motion for continuance so that her new attorney could investigate her case. Appellants further assert that as a result of the denial of the continuance, "Attorney Sorola and Attorney Gonzales were not able to defend the interests of Maria, E.C., Jr., and S.C. to remain together as a family."¹

The record reflects, however, that the alleged complaint was preserved by Maria, not appellants. Maria's attorney announced "not ready" at trial and requested a continuance. Attorney Gonzales, appellants' guardian ad litem, announced "ready."² The trial court denied Maria's request for a continuance. In accordance with Texas Rule of Appellate Procedure 33, Maria preserved the complaint for our review; appellants did not. See Tex. R. App. P. 33.

Assuming, arguendo, that appellants did preserve this complaint for our review, the announcement of "ready" waived the motion for continuance. See Reyna v. Reyna, 738 S.W.2d 772, 775 (Tex. App.--Austin 1987, no writ) (announcement of "ready" waives the right to later seek a delay based upon any facts that are, or with proper diligence should have been, known at the time of the announcement).

3. In the Interest of E.C., Jr., a Minor Child

By their second issue, appellants complain the trial court erred in signing the judgment because it does not have the standard possession order for Mother's Day set out in the family code.³ Appellants contend the terms and conditions of the family code's standard possession order for Mother's Day is a mandatory provision.

Maria was appointed Sole Possessory Conservator of E.C., Jr. and was given possession of E.C., Jr. on Mother's Day as follows:

10. Mother's Day. If MARIA MAGDALENA SANCHEZ is not otherwise entitled under this Standard Possession Order to present possession of the child on Mother's Day, she shall have possession of the child beginning at 6:00 P.M. and ending at 8:00 P.M. on that day provided that she picks up the child from the residence of the GRAYDONS and returns the child to that same place.

E.C., Jr. contends that the Graydons' strong desire to terminate the bond between Maria and himself led them to prepare a proposed judgment, which was signed by the judge, that offered only two hours on Mother's Day for visitation between himself and Maria. Because E.C., Jr. wants to spend Mother's Day with Maria, appellants argue that family code section 153.251 provides that a possessory conservator shall be granted a standard possession order, and the trial court signed a judgment that disregarded this provision. The Graydons argue that Maria is not the biological or adoptive mother of E.C., Jr., and technically does not fall under the terms set out for Mother's Day visitation in the family code's standard possession order.

The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to a child. Tex. Fam. Code Ann. § 153.002 (Vernon 1996). Trial courts have wide discretion in determining what is in the best interest of the child. Weimer v. Weimer, 788 S.W.2d 647, 650 (Tex. App.--Corpus Christi 1990, no writ). The trial court's judgment regarding what serves the best interest of the children with regard to child support and visitation, specifically the establishment of terms and conditions of the conservatorship, is a discretionary function of the trial court and will only be reversed upon a determination that the trial court has abused its discretion. MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex. App.--Corpus Christi 1990, writ denied). This is because the trial court is in the best position to observe the demeanor and personalities of the witnesses and can feel forces, powers, and influences that cannot be discerned by merely reading the record. In the Interest of T____, 715 S.W.2d 416, 418 (Tex. App.--Dallas 1986, no writ). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

If a possessory conservator is appointed, the court must specify that person's rights and duties, and must specify and expressly state in the order the times and conditions for possession of or access to the child. Tex. Fam. Code. Ann. § 153.006(c) (Vernon 1996).

In the present case, the court gave Maria possession of E.C., Jr. from 6:00 p.m. to 8:00 p.m. on Mother's Day. The guidelines referred to by appellant as requiring standard possession order visitation on Mother's Day appear on their face to apply to only a parent possessory conservator.⁴ Section 153.251 reads: the guidelines established in the standard possession order are intended to guide the courts in ordering the terms and conditions for possession of a child by a parent named as a possessory conservator or as the minimum possession for a joint managing conservator. Tex. Fam. Code Ann. § 153.251(a) (Vernon 1996) (emphasis added). Further, the standard possession order set forth in section 153.314:

(6) if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother's Day and ending on Mother's Day at 6 p.m., provided that, if she is not otherwise entitled under this standard order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.

Tex. Fam. Code Ann. § 153.314 (6) (Vernon 1996) (emphasis added).

A statute shall be liberally construed to achieve its purpose and promote justice. Tex. Gov't Code Ann. § 312.006 (Vernon 1998). Regardless of whether we find that the standard possession order applies to Maria or not, section 153.251 states that "the guidelines established in the standard possession order are intended to guide the courts in ordering the terms and conditions for possession. . . ."...