Connors v. Connors

• Decision Date: 08 August 1990
• Docket Number: No. 2-89-238-CV,2-89-238-CV
• Citation: 796 S.W.2d 233
• Parties: Thomas P. CONNORS, Appellant, v. Joyce A. CONNORS, Jean Wilson, and John Wilson, Appellees.
• Court: Texas Court of Appeals

Page 233

796 S.W.2d 233

Thomas P. CONNORS, Appellant, v. Joyce A. CONNORS, Jean Wilson, and John Wilson, Appellees.

No. 2-89-238-CV.

Court of Appeals of Texas,

Fort Worth.

Aug. 8, 1990.

Rehearing Denied Oct. 9, 1990.

Jack L. Beezley and Leeona V. Stone, Beezley and Stone, Dallas, for appellant.

Mary S. Black, Dallas, for appellee Joyce Connors.

Mary D. McKnight, Dallas, for appellees John and Jean Wilson.

Before FARRIS, DAY and CLYDE R. ASHWORTH (Retired, Sitting by Assignment), JJ.

OPINION

CLYDE R. ASHWORTH, Justice (Retired).

This is an appeal from a divorce judgment after a jury trial which awarded joint managing conservatorship of two children to the mother and her parents. Appellees filed a cross-point complaining of the reduction of attorney's fees from the amount found by the jury.

We affirm the award of joint managing conservatorship and sustain the cross-point as to attorney's fees.

Thomas P. Connors, appellant, and Joyce A. Wilson Connors, one of the appellees were married in 1976. A son was born in 1981 and a daughter was born in 1985. About five months after the daughter's birth, Joyce suffered a stroke. She required institutional care for about two years and returned to her home in October, 1987. She suffered then, and continues to suffer severe disabilities, but with difficulty can care for her personal needs. In February, 1988, appellant filed for divorce. Preliminary hearings were held--appellee remained in the house, appellant was ordered to pay child support, and the parties had equal possession of the children--first three weeks each, then one week each.

In May, 1988, appellees John and Jean Wilson, parents of appellee Joyce Connors, filed a petition in intervention seeking to be appointed sole managing conservators of the children. The Wilsons filed an amended petition in intervention in October, 1988. This pleading sought joint conservatorship with the parents of the children; alternatively, the Wilsons sought managing conservatorship.

The case was tried to a jury which found that appellees, Joyce A. Connors and John and Jean Wilson, jointly should be appointed managing conservators of the children; further, that $30,750 was a reasonable attorney's fee for Joyce Connor's attorney.

Appellant presents three points of error. The first point contends the trial court erred in overruling appellant's first amended motion for new trial. Such motion urged error in the trial court's submission of the following question:

From a preponderance of the evidence, and considering only the best interest of the children, who should be appointed as managing conservator?

Answer by naming the parties or party to whom the managing conservatorship of the children should be granted.

A. Joyce A. Connors and John and Jean Wilson jointly.

B. Thomas P. Connors

Answer: ________________________

Such motion further urged error in submitting an instruction accompanying such question which generally stated that qualifications of the parties without regard to sex should be considered, that the rights of the parents are equal, and that a parent should be appointed as managing conservator unless it is shown by a preponderance of the evidence that it is in the best interest of the children that a third person be appointed instead of a natural parent.

The motion in question states that appellant objected to the instruction and question, but that the trial court sought submission by consent.

We have searched the record in this case and can find no objection by appellant to the court's charge. We do find the following at that point in the record which concerns objections to the charge:

THE COURT: Okay. The charge has been prepared. I will hear from the Petitioner as to whether or not there's any objections to the Court's charge.

MS. McCULLOCK: Your Honor, we have no objection to the Court's charge.

We fail to understand appellant's assertion that his attorney objected to the Court's charge in face of the record quoted above. In any event, TEX.R.CIV.P. 272 provides in part:

The charge shall be in writing, signed by the court, and filed with the clerk, and shall be a part of the record of the cause. It shall be submitted to the respective parties or their attorneys for their inspection, and a reasonable time given them in which to examine and present objections thereto outside the presence of the jury, which objections shall in every instance be presented to the court in writing, or be dictated to the court reporter in the presence of the court and opposing counsel, before the charge is read to the jury. All objections not so presented shall be considered as waived.

Just as stated in the rule, objections not so stated are waived. Morgan v. Letellier, 677 S.W.2d 165, 167 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Ormsby v. Travelers Indem. Co. of Rhode Island, 601 S.W.2d 779, 780 (Tex.Civ.App.--Waco 1980, no writ); Dodson v. McCoy, 601 S.W.2d 128, 130 (Tex.Civ.App.--Houston [1st Dist.] 1980, no writ); Barnhouse Motors, Inc. v. Godfrey, 577 S.W.2d 378, 381 (Tex.Civ.App.--El Paso 1979, no writ).

Appellant's first amended motion for new trial further contends trial court error in failing to submit and adopt petitioner's requested special issue and instructions. The motion then sets out an instruction which states one parent should be appointed sole managing conservator, or both parents appointed joint managing conservators unless such appointment would not be in the best interest of the child because such appointment would significantly impair the child's physical health or emotional development. This instruction is followed by a question asking for the naming of one or both persons as sole or joint managing conservators. Appellant also complains, in such motion, of the trial court's failure to include an instruction that the jury was required to disqualify both parents as possible sole managing conservators before it could consider any non-parent as managing conservator.

We have again searched the record in an attempt to find the requested special issue and instruction. TEX.R.CIV.P. 273 provides:

Either party may present to the court and request written questions, definitions, and instructions to be given to the jury; and the court may give them or a part thereof, or may refuse to give them, as may be proper. Such requests shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination. A request by either party for any questions, definitions, or instructions shall be made separate and apart from such party's objections to the court's charge.

Just as in the case of objections to the charge, failure to present requested questions and instructions constitutes a waiver of the right to do so. Wristen v. Kosel, 742 S.W.2d 868, 870 (Tex.App.--Eastland 1987, writ denied); Breithaupt v. Navarro County, 675 S.W.2d 335, 339 (Tex.App.--Waco 1984, writ ref'd n.r.e.). Since there are no requested questions or instructions in the record, appellant's complaint of the trial court's failure to include the same in the court's charge is without merit.

Appellant's motion further alleges that the verdict of the jury is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. This allegation is the same as appellant's third point of error which contends the jury verdict is contrary to the great weight and preponderance of the evidence.

In reviewing a point of error asserting that a finding is "against the great weight and preponderance" of the evidence, we must consider and weigh all of the evidence, both the evidence which tends to prove the existence of a vital fact as well as evidence which tends to disprove its existence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Ford Motor Co. v. Nowak, 638 S.W.2d 582, 585 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.). So considering the evidence, if a jury finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained, regardless of whether there is some evidence to support it. Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959) (per curiam); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951) (per curiam).

We note, initially, that appellant's brief devotes approximately one page for argument in support of the third point of error; we are not given the benefit of any authorities in support of the contention, and are directed to approximately twenty lines of testimony in the record containing testimony of appellant, Thomas P. Connors, concerning his views of the effects on the children if appellees were appointed managing conservators.

We find appellant's brief, with regard to the third point of error, is woefully insufficient of the requirements of TEX.R.APP.P. 74 which requires the argument in support of a point of error to include a fair statement of the facts pertinent to the point with reference to pages in the record where such facts may be found and discussion of the facts and authorities relied upon.

Even though the third point of error is not properly briefed, in the interest of justice, we consider the same. As noted earlier, the record in this case consists of approximately fourteen hundred pages of testimony. Testimony was given which supported appellant's contention that he should be appointed sole managing conservator. Testimony was given that supported appellees Joyce Connors and the Wilsons, in their claim for joint managing conservatorship.

We find it unnecessary to detail or summarize, in this opinion, the precise testimony in the record. Suffice it to say, we find evidence, and sufficient evidence, in the record to support the finding of the jury awarding joint managing conservatorship to appellees. Further, such jury finding was not so...