Dennis v. Smith

• Decision Date: 30 October 1997
• Docket Number: No. 01-96-00177-CV,01-96-00177-CV
• Citation: 962 S.W.2d 67
• Parties: Linda L. DENNIS (f/k/a Smith), Appellant, v. Glenn Walter SMITH, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 67

962 S.W.2d 67

Linda L. DENNIS (f/k/a Smith), Appellant, v. Glenn Walter SMITH, Appellee.

No. 01-96-00177-CV.

Court of Appeals of Texas Houston (1st Dist.).

Oct. 30, 1997.

Rehearing Overruled Jan. 2, 1998.

Shawn Casey, Houston, for Appellant.

John K. Grubb, Houston, for Appellee.

Before COHEN, HEDGES and O'CONNOR, JJ.

OPINION

COHEN, Justice.

Appellant, Linda Dennis (Linda), complains of the provisions in her divorce judgment on conservatorship, child support, and mediation. We reform and affirm.

Facts

Linda sued her husband, Glenn Walter Smith (Glenn), for divorce. By agreement, they were appointed temporary joint managing conservators of MDS, who was then almost four years old. Glenn was given physical possession of MDS for approximately 38% of the year. Linda had possession the rest of the time, had the exclusive right to establish MDS's legal domicile within Harris County, and had the right to select MDS's school after conferring with Glenn. The parties stipulated and the trial judge found there was good cause for not ordering either party to pay child support to the other. However, both were ordered to provide MDS clothing, food, shelter, medical care, and education. Later, at trial, the judge found that the "parties operated with no child support either way for two years; they pretty well split things down the middle; Glenn ... has paid all medical expenses and insurance," and that the agreed temporary orders that required no support payments had "promoted cooperation between the parties and benefitted" the child.

At trial, the parties waived a jury and agreed to be named joint managing conservators. The judge appointed Linda as the "primary possessory parent," ¹ but gave Glenn the exclusive right to establish MDS's legal domicile and residence in Harris County and to select MDS's school. Both parents were ordered to support MDS by providing clothing, food, shelter, medical care, and education, but the judge again found good cause for not ordering either to pay money to the other. Glenn was ordered to provide MDS with health insurance. If a dispute arose, the party desiring judicial relief was required to pay for three mediation sessions before suing.

Standard of Review

Trial judges have wide discretion with respect to custody, control, possession, support, and visitation matters involving the child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982) (custody); Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.--Houston [1st Dist.] 1993, writ denied) (child support). We will reverse only if the judge abused her discretion by acting without reference to any guiding rules or principles or by acting arbitrarily or unreasonably. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). There is no abuse of discretion if some evidence supports the decision. Holley, 864 S.W.2d at 706.

Rights of Joint Conservatorship

In point of error one, Linda complains the trial judge abused her discretion in awarding Glenn the exclusive right to select MDS's domicile and school.

In determining such issues, the child's best interest is the primary consideration. TEX. FAM.CODE ANN. § 153.002 (Vernon 1996). There is a rebuttable presumption that joint managing conservatorship is in the child's best interest. TEX. FAM.CODE ANN. § 153.131 (Vernon 1996). In appointing joint managing conservators, the court shall:

(1) establish the county of residence of the child until altered by further order, or designate the conservator who has the exclusive right to determine the primary residence of the child;

(2) specify the rights and duties of each parent regarding the child's physical care, support, and education;

(3) include provisions to minimize disruption of the child's education, daily routine, and association with friends;....

TEX. FAM.CODE ANN. § 153.134(b) (Vernon 1996). Ordinarily, the court in a joint managing conservatorship must designate the child's primary physical residence. TEX. FAM.CODE ANN. § 153.136 (Vernon 1996). ²

Linda contends that awarding Glenn the exclusive right to establish MDS's legal domicile and residence within Harris County requires her to move if Glenn moves, thus making her "nothing more than a nanny serving at her ex-husband's convenience." She contends this conflicts with her designation in the decree as the "primary possessory parent." Linda relies on the following dictum in Leithold v. Plass, 413 S.W.2d 698, 700 (Tex.1967):

Custody of a child connotes the right to establish the child's domicile and includes the elements of immediate and direct care and control of the child, together with provisions for its needs. These rights inherent in a custody status are not held by one enjoying visitation rights....

Id. (citations omitted). She argues that this language means that because she has "custody" of MDS, she should have the exclusive right to determine MDS's place of residence.

We disagree. The decision in Leithold is based entirely on common, judge-made law. It preceded the enactment of the Family Code, specifically section 153.131, which makes joint custody the public policy of this state. Under today's law, Glenn is not "one enjoying visitation rights." Leithold, 413 S.W.2d at 700. He is a "joint managing conservator." Both he and Linda have "custody" and legally shared responsibility for MDS. Neither has "visitation rights."

Moreover, Leithold had nothing to do with the issue before us. The issue there was whether ordering visitation in California for two weeks a year constituted a "change of custody," as the intermediate court had surprisingly held, or merely a change in visitation. 413 S.W.2d at 700. Naturally, the supreme court held it was a change in visitation, reversed the lower court's judgment, and approved the change in visitation. Thus, although correctly decided, Leithold is inapplicable.

The Leithold opinion went on, however, to justify itself by describing what "custody" was and by showing how the minor change in visitation did not affect custody. To show that, it stated the dictum quoted above. That language does not change the result here. Joint managing conservatorship "does not require ... equal or nearly equal periods of physical possession...." TEX. FAM.CODE ANN. § 153.135 (Vernon 1996). Both conservators share joint responsibility for the child. See TEX. FAM.CODE ANN. §§ 153.131(b); 151.003; 153.133-.134 (Vernon 1996). That is a fundamental difference from the law in effect before section 153.131 was enacted. The law then considered the non-custodial parent to be one having "only the occasional right of visitation." Leithold, 413 S.W.2d at 702, n. 1 (Norvell, J., dissenting). The dissent in Leithold contains arguments against "the evil" of "split custody," which was condemned for requiring that the child be "hawked about from one parent to the other...." Id. at 704. Moreover, the law then endorsed sex discrimination in favor of women, giving them preference in child custody cases. Martin v. Martin, 132 S.W.2d 426, 428 (Tex.Civ.App.--Waco 1939, no writ), cited with approval in Leithold, 413 S.W.2d at 704 (Norvell, J., dissenting) (citing Martin as the "leading and most often cited case" in Texas).

We have come a long way since then. Such sex discrimination is now illegal. TEX. CONST. art.I., § 3a; TEX. FAM.CODE ANN. § 153.003 (Vernon 1996) (in deciding conservatorship, possession, and access); TEX. FAM.CODE ANN. § 154.010 (Vernon 1996) (in determining child support); In re McLean, 725 S.W.2d 696, 697-98 (Tex.1987). That is a major reason why we have a joint managing conservator statute today. The law no longer presumes that the mother is the better parent to raise the child. But even if the dictum in Leithold were the holding, it would still be clear that the Family Code has passed it by. Thus, just as there is no longer a presumption that the mother should raise the child, there is no presumption that the conservator with the longer period of possession should decide where a child lives or goes to school. The issue is not, is someone being made a nanny? The issue is, what is in the child's best interest?

Did the trial judge abuse her discretion by concluding that the child's best interests were served by entrusting such decisions to Glenn? Not in light of the following findings of fact, most of which are not attacked by Linda on appeal: ³

5. The parties separated in September 1993, when the child ... was approximately three years old.

....

7. [MDS] was born to the parties on September 27, 1990.

8. Linda Dennis Smith stayed home with [MDS] until he was almost eleven months old.

9. Glenn Walter Smith worked a lot of overtime and went to night school during [MDS's] first eleven months.

10. The parties entered into Agreed Temporary Orders.

11. The parties owned a house together; when they separated, Linda Dennis Smith moved into an apartment and Glenn Walter Smith stayed in the house.

....

13. Linda Dennis Smith has a mother, father and three sisters living; [MDS] has seen his maternal grandparents infrequently and only one of his mother's sisters.

14. Glenn Walter Smith has a mother, father, three brothers and a sister living; Glenn Walter Smith has a close family; they are decent people; they help each other.

15. Glenn Walter Smith's parents and Linda Dennis Smith's sister provide back up.

16. At the time Linda Dennis Smith was claiming that a joint managing conservatorship was not working, Dr. Sallye Webster found that for the parties to effect a joint managing conservatorship and make it work for the parties and their son, that both parents should be involved in all of [MDS's] activities and should encourage the development of relationships with the extended families.

17. Glenn Walter Smith and Linda Dennis Smith do a good job keeping each other informed about day care, doctors, extracurricular activities, pick-ups and deliveries.

18. The parties have been following essentially the same periods of possession since February, 1994.

....

20. Linda...