Doyle v. Doyle

• Decision Date: 06 November 1997
• Docket Number: No. 03-97-00161-CV,03-97-00161-CV
• Citation: 955 S.W.2d 478
• Parties: John Eric DOYLE, Appellant, v. Tamera Lynn Nunn DOYLE, Appellee.
• Court: Texas Court of Appeals

Page 478

955 S.W.2d 478

John Eric DOYLE, Appellant, v. Tamera Lynn Nunn DOYLE, Appellee.

No. 03-97-00161-CV.

Court of Appeals of Texas,

Austin.

Nov. 6, 1997.

Laurie Nowlin, Walsh, Akins & Davis, P.C., Round Rock, for Appellant.

Cynthia Borgfeld Smith, Georgetown, for Appellee.

Before POWERS, ABOUSSIE and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

Justin Doyle's divorcing parents could not agree on conservatorship arrangements for him. After a trial to the court, the trial judge named Tamera Doyle sole managing conservator and John Doyle possessory conservator. John contends that the trial court should have appointed him and Tamera joint managing conservators because the presumption in favor of joint managing conservatorship was not rebutted. We will affirm the trial-court judgment.

Background

After separating, John and Tamera had an informal custody-sharing arrangement that their young son Justin would alternate living four months with Tamera in Texas and four months with John in Florida. However, after the divorce litigation began, the cooperative relationship between the parents deteriorated. Furthermore, Justin turned five and needed to enroll in elementary school in one location. After a Florida court found it did not have jurisdiction over the divorce, this cause was tried in Williamson County. Mediation failed, and the trial court had to decide the issue of conservatorship for Justin.

We review the trial court's determination of conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex.App.--Corpus Christi 1990, writ denied). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

John brings twenty-three points of error challenging the legal and factual sufficiency of evidentiary findings the court relied on to hold Tamera's appointment as sole managing conservator was in Justin's best interest. ¹ Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. Wilemon v. Wilemon, 930 S.W.2d 290, 293 (Tex.App.--Waco 1996, no writ); Wood v. O'Donnell, 894 S.W.2d 555, 556 (Tex.App.--Fort Worth 1995, no writ). We will construe the points together as asserting an abuse of discretion and will review the evidence as it is relevant to whether the trial court abused its discretion in finding that the presumption in favor of joint managing conservatorship was rebutted.

Presumption of Joint Managing Conservatorship

The court's primary consideration in determining conservatorship and possession is the best interest of the child. Tex. Fam.Code Ann. § 153.002 (West 1996) (Family Code). The trial court shall consider the qualifications of the parties without regard to their marital status or to the gender of the party or the child in determining which party to appoint as sole managing conservator, whether to appoint joint managing conservators, and the terms and conditions of conservatorship. Family Code § 153.003. The trial court may appoint a sole managing conservator or joint managing conservators. Family Code § 153.005(a). In 1995, the Legislature enacted a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. Family Code § 153.131(b). In determining whether the presumption has been rebutted, we will review the evidence in light of the factors that the court must consider in weighing the appointment of joint managing conservators. Family Code § 153.134; see Martinez v. Molinar, 953 S.W.2d 399 (Tex.App.--El Paso 1997, no pet. h.)

Factors Affecting Joint Managing Conservatorship

There is evidence in the record that the trial court properly considered all of the relevant factors set forth in section 153.134 before concluding that the presumption in favor of joint managing conservatorship had been rebutted.

Cooperative Decision-Making Ability

The succinct statement by the court-ordered psychologist that there had been a "sharp deterioration" in John and Tamera's ability to cooperate best summarizes the evidence concerning this factor. Mediation between the parties did not succeed. The court found that John and Tamera had agreed to file for divorce in Texas, to do so without a contest, to alternate four-month periods of possession until Justin started school and thereafter to have Justin attend school in Texas. Instead, John filed for divorce in Florida and served Tamera with those papers while she was still expecting to file suit in Texas. She then became concerned about returning Justin to John in Florida, in part because some of John's remarks led her to believe he might be seeking sole possession contrary to their agreement. Her suspicions aroused, Tamera wanted the protection of temporary court orders before allowing Justin to return to Florida. She testified to her panic at one point when she was unable to find John, Justin or John's attorney.

John's mother also began to intercede in the decision-making. At the hearing in Williamson County on temporary orders, John's mother became very upset and threatened Tamera. There was also evidence that John and Tamera's ability to reach shared decisions was undermined as each of them formed primary relationships with new partners. Each expected their new partner to participate in Justin's care and each expected that their new marriage would serve as Justin's model for his adult relationships.

Whether through poor communication or fault or the interaction with new partners, the parents' ability to cooperate deteriorated and the level of suspicion and hostility evident at the time of trial cast doubt on their ability to participate effectively in a joint conservatorship arrangement. In its conclusions of law, the trial-court explicitly found the history of the parties and their recent patterns of interaction negated the presumption in favor of joint managing conservatorship.

Benefits to Child

There is evidence that Justin's general psychological and emotional condition had begun to worsen under the back-and-forth arrangement. The parties changed their four-month rotation to six months on John's suggestion that longer periods of possession would ameliorate certain discipline problems Justin was manifesting. The court-appointed psychologist expressed concern over behavioral changes upon Justin's transition from one home to the other. After one transition from Florida to Texas, Justin's preschool teachers raised concerns about his physical and verbal aggression at school and Tamera reported an increase in "oppositional behavior" at home.

Justin's problems in accommodating shared living arrangements have increased as he has grown older and as the cooperative relationship between his parents has declined. The evidence supports the court's conclusion that Justin would not presently benefit from a continued joint managing conservatorship whatever the earlier success of...