Gonzales v. Maggio

• Decision Date: 18 August 2016
• Docket Number: NO. 03-14-00117-CV,03-14-00117-CV
• Parties: Nash Jesus Gonzales and Gonzales & Gonzales, P.C., Appellants v. Marissa Ann Maggio, Appellee
• Court: Texas Court of Appeals

500 S.W.3d 656

Nash Jesus Gonzales and Gonzales & Gonzales, P.C., Appellants

v.Marissa Ann Maggio, Appellee

NO. 03-14-00117-CV

Court of Appeals of Texas, Austin.

Filed: August 18, 2016

Thomas B. Cowart, Wasoff & Cowart, P.L.L.C., Richardson, TX, for Appellants.

C. Wilson Shirley, III, Jessica M. Hall, Savrick, Schumann, Johnson, McGarr, Kaminski & Shirley, L.L.P., Austin, TX, for Appellee.

Before Justices Puryear, Pemberton, and Bourland

OPINION

Bob Pemberton

, Justice

Appellant Nash Jesus Gonzales and appellee Marissa Ann Maggio are each Texas-licensed attorneys who were formerly partners in both marriage and law practice.¹ They divorced both maritally and professionally, and Gonzales brings appellate issues complaining of both aspects of the disunion that were addressed by the final decree. In his first of five issues on appeal, Gonzales challenges a decree provision allowing Maggio, as joint managing conservator with the exclusive right to determine the primary residence of two children of the marriage, to locate that residence anywhere within the State of Texas. Gonzales's remaining issues complain of the decree's award of interests in cases that had been originated by the Gonzales-Maggio law partnership. Gonzales is joined in this second set of issues by the entity through which he has practiced law following the dissolution of his partnership with Maggio, appellant Gonzales & Gonzales, P.C. We will affirm the decree as to the geographic restrictions but must reverse and remand, in part, the award of interests in cases.

RESIDENCY

The trial-level proceedings were conducted in four basic stages: (1) on demand by Gonzales, a jury trial in February 2013 that ultimately resolved only contested issues of conservatorship and the children's residency;² (2) the district court's oral rendition of judgment on February 25, 2013, granting divorce and prescribing conservatorship and residency terms in a manner consistent with the jury's verdict; (3) presentation of further evidence to the bench concerning remaining issues, including the dispute over interests in cases originated by the Gonzales-Maggio law partnership; and (4) finalization and ultimate signing of the final decree.³ In the first stage, the jury found that Gonzales and Maggio should be appointed joint managing conservators.⁴ In light of that finding, the Family Code required additional findings as to (1) which of the joint managing conservators should have the exclusive right to determine the children's primary residence; (2) whether a geographic restriction should be imposed on that right; and (3) if a geographic restriction should be imposed, what that geographic area should be.⁵ Gonzales and Maggio each sought the exclusive right to determine the children's primary residence and advanced similarly competing positions as to whether the party so designated should be subject to any geographic restriction. Gonzales advocated limiting the children's residence to Travis County, emphasizing that the children had been born in Austin and had spent their lives there, and that it was also the base of his extended family, including sisters and cousins who had been active in the children's lives. Maggio, in contrast, urged that no geographic limitation be imposed so as to enable her to relocate with the children to the New York area, where she had grown up and that had remained the base of her immediate and extended family of origin. She had also obtained a law license in that state (unlike Gonzales), and claimed that professional opportunities were available to her there.

The three issues related to residency were submitted to the jury, without objection, through a succession of questions that tracked the exemplars set forth in the Texas Pattern Jury Charge. Question 2 inquired, “Which joint managing conservator should have the exclusive right to designate the primary residence of the children?,” and instructed the jury to complete a blank with the name of the joint managing conservator it had chosen.⁶ Question 3, in turn, inquired, “Should the managing conservator you named in Question No. 2 above be permitted to designate the primary residence of the children without regard to geographic location or with a geographic restriction?,” to which the jury was instructed to indicate either “Without regard to geographic location” or “With a geographic restriction.”⁷ Finally, predicated on a “[w]ith a geographic restriction” finding in Question 3, Question 4 asked that the jury “[s]tate the geographic area within which the joint managing conservator must designate the primary residence of the children” by filling in a blank.⁸ In answering these questions, the jury was further guided by general instructions that included, “The best interest of the child shall always be the primary consideration in determining questions of conservatorship.”⁹

The jury found in Question 2 that Maggio rather than Gonzales should have the exclusive right to determine the children's primary residence. However, it found in Question 3 that Maggio's right should be subject to a geographic restriction. As for what that “geographic area” should be, the jury filled in the blank of Question 4 with an answer that neither party had advocated directly—“State of Texas.” The district court rendered its decree consistent with the jury's findings, naming Gonzales and Maggio joint managing conservators and granting Maggio the exclusive right to determine the children's primary residence within the State of Texas.

In his first issue on appeal, Gonzales challenges only the jury's finding in Question 4 that the geographic restriction to which Maggio was subject should be the boundaries of the State of Texas.¹⁰ He reasons that “[f]rom beginning to end of the jury trial of this matter, all of the evidence and argument was directed to the children either living in Travis County or in New York (or possibly Connecticut),” not “anywhere in Texas.” Consequently, Gonzales urges, the district court erred in rendering judgment based on Question 4, and he prays for a new trial of the issue.¹¹

As an initial observation, Gonzales does not argue that the jury charge restricted the jury to the binary Travis County/Austin-versus-New York choice he proposes. To the contrary, the jury was asked simply to fill in a blank indicating “the geographic area” in which the jury found that Maggio should designate the children's primary residence, with no explicit restriction or limitation on that choice beyond requiring primary consideration of the children's best interests. Nor does Gonzales complain of any error in these portions of the charge, and with good reason—the charge, modeled on the PJC exemplars, was consistent with the underlying standard in the Family Code, which merely requires determination of a or the “geographic area” within which the children must reside.¹² This standard, as this Court has previously recognized, affords leeway to a fact-finder to eschew a choice between two opposing alternatives advocated by the parties in favor of an amalgam of the proposals instead.¹³ This Court has similarly observed that the statutory framework implies broad flexibility in designating a “geographic area,” including the possibility of a “geographic area” comprised of multiple counties, inasmuch as the decisional continuum would extend even to imposing no geographic limitation at all.¹⁴

But a fact-finder can exercise only such leeway regarding the appropriate geographic area that the evidence supports, of course, and thus Gonzales focuses on contesting whether there was legally or factually sufficient evidence to support the jury's “State of Texas” finding. To sustain Gonzales's legal-sufficiency challenge, the record must show (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.¹⁵ In making this determination, we view the evidence in the light most favorable to the jury's finding, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not.¹⁶ We indulge every reasonable inference that would support the finding.¹⁷ When reviewing the factual sufficiency of the evidence, we consider and weigh all of the evidence in the record, and set aside the finding only if the evidence supporting the finding is so weak as to be clearly wrong and manifestly unjust.¹⁸ Under either standard, we defer to the jury's credibility determinations if reasonable and do not merely substitute our judgment.¹⁹

The Texas Supreme Court has further instructed that the “best interest” yardstick in the child-relocation context should take account of the Family Code's policy goals of “assur[ing] that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child,” “provid[ing] a safe, stable, and nonviolent environment for the child,” and “encourag[ing] parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.”²⁰ To that end, the court has identified eight non-exclusive factors that may aid the inquiry: (1) the reasons for and against the move, including the parents' good faith motives in requesting or opposing it; (2) comparisons of education, health, and leisure opportunities; (3) the degree of economic, emotional, and educational enhancement for the custodial parent and the child; (4) the effect on extended family relationships; (5) accommodations of the child's special needs or talents; (6) the effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with the child; (7) the possibility of a visitation schedule allowing...