Hale v. Hale, No. 4-05-00314-CV (TX 1/25/2005)
| Decision Date | 25 January 2005 |
| Docket Number | No. 4-05-00314-CV.,4-05-00314-CV. |
| Parties | WILLIAM R. HALE, JR., Appellant, v. LOIS K. HALE, Appellee. |
| Court | Texas Supreme Court |
Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-07202, Honorable Barbara Hanson Nellermoe, Judge Presiding.
REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
William R. Hale, Jr. appeals the trial court's judgment granting him conditional visitation with his daughter, ordering him to pay additional contingent child support, and ordering him to reimburse his wife, Lois Hale, for community funds expended during their marriage. The trial court's judgment is reversed. Judgment is rendered deleting the divorce decree's provisions relating to the payment of contingent child support and reimbursement. The visitation issue is remanded to the trial court for further clarification.
William and Lois were married in the 1970s and divorced in 1998. They remarried in 1999 and William filed for divorce in May of 2004. During their marriage they had one daughter, A.H., who was born in 1992. Although the record is not specific, it appears that sometime in 2003 the Texas Department of Family and Protective Services was referred to the Hale home to investigate allegations that William had sexually abused his stepdaughters, Lois's daughters by a previous marriage, some twenty years ago.1 No criminal charges were filed against William nor are any pending. Fearing that A.H. had been or would be abused, the Department strongly recommended that William move out of the family home and have no contact with A.H. until a therapist recommended otherwise. At the divorce hearing, testimony was presented by several therapists that William's behavior toward A.H. was inappropriate. William admitted that he had abused his stepdaughters in the past, but that he had not done so to A.H. At the conclusion of the testimony, the trial court granted the divorce and named Lois sole managing conservator of A.H. William was appointed possessory conservator with no contact allowed until A.H. reaches the age of eighteen or until a therapist recommends visitation. William was ordered to pay child support according to the statutory guidelines and, in addition, he was ordered to pay $1,000 per month if Lois and A.H. were forced to move out of the family home. William was also ordered to reimburse Lois for half of the estimated $50,000 he tithed to his church during the six years of their marriage.2
In his first issue, William contends that the trial court abused its discretion when it ordered no visitation with A.H. unless recommended by a therapist. The trial court has wide discretion with respect to custody, control, possession, and visitation matters involving the child. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). "This discretion is wisely vested in the trial judge in these matters because [the trial judge] faces the parties and the witnesses, observes their demeanor, views their personalities and senses the forces and powers which motivate them." Fair v. Davis, 787 S.W.2d 422, 431 (Tex. App.-Dallas 1990, no writ), citing Maixner v. Maixner, 641 S.W.2d 374, 376 (Tex. App.-Dallas 1982, no writ). An appellate court will not reverse the trial court's decision regarding visitation absent a clear abuse of discretion.3 See In the Interest of M.R., 975 S.W.2d 51, 53 (Tex. App.-San Antonio 1998, pet. denied); Villaseñor v. Villaseñor, 911 S.W.2d 411, 419 (Tex. App.-San Antonio 1995, no writ.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). The best interest of the child is always the primary consideration in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code Ann. § 153.002 (Vernon 2002). There is a presumption that the standard possession order is in the best interest of the child, but this presumption may be rebutted. Tex. Fam. Code Ann. § 153.252 (Vernon 2002).
A.H. never made an outcry that her father physically or sexually abused her, and there is no medical evidence that she had been assaulted; however, testimony was presented at the hearing that led the trial court to conclude that visitation with her father was not in A.H.'s best interest. Susan Testa, a caseworker with the Department, testified that William admitted to her, without remorse, that there had been some sexual indiscretions with his stepdaughters. Before the divorce was granted, the Department referred William to counseling as a requirement for visiting his daughter, but he stopped attending after four therapy sessions.4 When asked why William should not be allowed to contact his daughter, Testa replied, "because there is risk [of abuse] and there should have been continued treatment." Shannon Peck, the therapist for A.H., testified that A.H. exhibits behavior consistent with those found in children who have experienced vicarious abuse or are in the grooming stages of sexual abuse, such as confusion about the roles and boundaries of parents. In addition, Peck stated that A.H. is "very definite" about not wanting to have contact with her father at this time. Moreover, Peck described William as an "incest abuser" and recommended that he have no contact with A.H. based on a long pattern of abuse of his stepchildren. Sue Jericho, Lois's therapist, testified that she was concerned that A.H. would be sexually abused if allowed to visit with her father. Jericho also emphasized that A.H. does not want to see her father.
William argues that a court cannot appoint a parent as possessory conservator, yet deny all access to the child. See In re Walters, 39 S.W.3d 280, 286-87 (Tex. App.-Texarkana 2001, no pet.) ( that a court cannot conclude that access, even restricted access, would endanger the physical or emotional welfare of the child, because such a conclusion would prevent the trial court from appointing the parent possessory conservator); see also Tex. Fam. Code Ann. §§ 153.191, 153.193 (Vernon 2002). We agree that a complete denial of access should be rare. A parent appointed possessory conservator should at least have periodic visiting privileges with their child and should not be denied such, except in extreme circumstances. See Allison v. Allison, 660 S.W.2d 134 (Tex. App.-San Antonio 1983, no writ); Liddell v. Liddell, 29 S.W.2d 868 (Tex. Civ. App.-San Antonio 1930, no writ); Thompson v. Thompson, 827 S.W.2d 563, 569 (Tex. App.-Corpus Christi 1992, writ denied); Anderson v. Martin, 257 S.W.2d 347 (Tex. Civ. App.-Amarillo 1953, writ ref'd n.r.e.); and Tuel v. Tuel, 252 S.W.2d 203 (Tex. Civ. App.-Fort Worth 1952, no writ). Denial of access must be limited to those situations where the parent's access is not in the best interest of the child. Walters, 39 S.W.3d at 287; Tex. Fam. Code Ann. § 153.193 (Vernon 2002). This case, however, is distinguishable from Walters because William may see his daughter upon the recommendation of a therapist.
According to the testimony presented at the divorce hearing, the trial court concluded that it was in A.H.'s best interest not to visit with her father until a therapist recommended otherwise. Although the record supports the trial court's conclusion, the order itself is insufficient to ensure that William's limited ability to visit A.H. is adequately protected. The order does not name a therapist or provide any guidelines to ensure that the best interests of the child are protected in these circumstances. If a trial court determines that it is in the best interest of the child to place restrictions or conditions on a conservator's rights of possession and access, then it is the court's responsibility to specifically define those terms in its decree. In re A.P.S., 54 S.W.3d 493, 499 (Tex. App.-Texarkana 2001, no pet.). The judgment must state in clear and unambiguous terms what is required for the conservator to comply, and the terms must be specific enough to allow the conservator to enforce the judgment by contempt. See Ex Parte Brister, 801 S.W.2d 833, 834 (Tex. 1990); In re A.P.S., 54 S.W.3d at 498; Roosth v. Roosth, 889 S.W.2d 445, 452 (Tex. App.-Houston [14th Dist.] 1994, writ denied). Although there has been no action yet to enforce this judgment, William could not successfully enforce this judgment by contempt because the judgment does not meet the standards for enforceability. William's first issue is sustained.
In his second issue, William argues that the trial court abused its discretion in ordering him to pay an additional $ 1,000 a month in child support if Lois and A.H. are evicted from the family home.5 Issues regarding the payment of child support are reviewed under an abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re M.P.M., 161 S.W.3d 650, 654 (Tex. App.-San Antonio 2005, no pet.). The trial court ordered William to pay $642.01 per month in child support, according to the statutory guidelines. See Tex. Fam. Code Ann. § 154.125 (Vernon 2002). An asterisk inserted in the divorce decree after "$ 642.01 per month" corresponds to the following language: "If Respondent/Wife and Child are evicted/leave from [the current family home], then, as an additional obligation of child support, Petitioner is ordered to pay an additional $1000.00 per month in child support." The Findings of Fact state that ...
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