Heerden v. Heerden

• Decision Date: 31 August 2010
• Docket Number: No. 14-09-00708-CV.,14-09-00708-CV.
• Citation: 321 S.W.3d 869
• Parties: Ann E. VAN HEERDEN, Appellant, v. Casper J. VAN HEERDEN, Appellee.
• Court: Texas Court of Appeals

321 S.W.3d 869

Ann E. VAN HEERDEN, Appellant,

v.Casper J. VAN HEERDEN, Appellee.

No. 14-09-00708-CV.

Court of Appeals of Texas,Houston (14th Dist.).

Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Sallee S. Smyth, Richmond, for appellant.

Myrna Davila Gregory, Thomas R. Conner, Daniel Jake Lemkuil, Houston, for appellee.

Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.

OPINION

JEFFREY V. BROWN, Justice.

Appellant Ann E. Van Heerden appeals the trial court's judgment of the final divorce decree between herself and appellee Casper J. Van Heerden. Ann specifically appeals the sections of the decree concerning conservatorship, travel restrictions, and the division of the marital estate. Ann contends that: (1) the trial court erred in deciding Casper should be primary joint managing conservator of the children because the parties had an unrevoked stipulation that Ann would be primary conservator; (2) Ann was deprived of her due-process rights because the trial court's judgment was contrary to the parties' stipulation; (3) the trial court erred because it violated the parties' stipulation, which Ann argues was an effective Rule 11 agreement; (4) the trial court abused its discretion in awarding primary conservatorship to Casper because there was no evidence or pleadings supporting the judgment; (5) the trial court abused its discretion by including travel restrictions in the final divorce decree; (6) the trial court erred in striking the testimony of Ann's three fact witnesses on the basis that Ann's disclosure responses did not conform with Texas Rule of Civil Procedure 194.2(e); and (7) the trial court abused its discretion because in dividing the marital estate, the court used incorrect property values. We affirm in part, and reverse in part, and remand for further proceedings consistent with this opinion.

I

Ann and Casper met in 1986 and were married on March 24, 1990. During the nineteen-year marriage, the couple had three children, E.A.V., born December 10, 1997; A.M.V., born June 3, 2000; and A.E.V., born November 15, 2004. The Van Heerdens separated on May 31, 2008, and they were granted a divorce on March 25, 2009.

Casper is a citizen of Botswana, South Africa. The couple met in Botswana while Ann was volunteering with the Peace Corps. Two years later, they moved to the United States and were married shortly thereafter. Ann and Casper lived in Texas while Ann finished graduate school before moving to Wisconsin. Twelve years later, the Van Heerdens moved back to Texas where they resided until this suit was filed.

On June 13, 2008, Ann filed her original petition for divorce and subsequently filed her amended petition on December 9, 2008. Casper filed a counterpetition on July 2, 2008, and an amended counterpetition for divorce on March 16, 2009. After a three-day bench trial, the trial court rendered a judgment dissolving the Van Heerdens' marriage, dividing the Van Heerdens' marital estate, and naming Casper the primary joint managing conservator of the children. The trial court signed the final decree of divorce on May 15, 2009. The trial court also made findings of fact and conclusions of law. This appeal followed.

II

Ann's first six issues on appeal concern her conservatorship rights. In her first and third issues, Ann complains that the trial court erred because its judgment conflicted with the parties' unrevoked stipulation or Rule 11 agreement that Ann would be the primary joint managing conservator. Additionally, in her second issue, she contends that under section 153.007 of the Texas Family Code, if the court did not agree with the parties' stipulation, then it needed to give the parties notice and an opportunity to present evidence about conservatorship. In her fourth issue, Ann argues that the trial court abused its discretion in awarding primary conservatorship to Casper because there was no evidence or pleadings supporting the judgment. In her fifth issue, Ann asserts that the trial court abused its discretion because it included travel restrictions in the final divorce decree that were not pleaded by either party. Finally, in her sixth issue, Ann contends that the trial court erred in striking the testimony of her three fact witnesses on the basis that Ann's disclosure responses did not conform to Texas Rule of Civil Procedure 194.2. On these issues, Ann requests that we either render a judgment designating Ann as primary joint managing conservator with the right to choose the primary domicile for the children or reverse and remand the issues back to the trial court for a new trial.

Casper argues that there never was an agreed stipulation or a Rule 11 agreement naming which parent was going to be the primary conservator; therefore, Ann's due process rights were not violated. Even if there were a stipulation, Casper contends that the court could have decided that the agreement was not in the best interest of the children. Next, Casper asserts that there was sufficient evidence for the trial court to name him primary joint managing conservator, and it was in the best interest of the children for the trial court to make that decision. In response to Ann's fifth issue, Casper argues that the trial court did not abuse its discretion in restricting the children's travel or in allowing Casper to possess the children's passports because evidence was introduced at trial that these restrictions would be in the best interest of the children. Finally, Casper contends the trial court did not abuse its discretion in excluding Ann's witnesses because her disclosure responses were insufficient, and the court's discovery sanctions were appropriate.

A

We must decide whether Ann's request for this court to render judgment in her favor is the appropriate remedy. When reversing the trial court's judgment or appealable order, we typically render the judgment or order that the trial court should have rendered. See Tex.R.App. P. 43.3; In re A.S., 261 S.W.3d 76, 93 n. 19 (Tex.App.-Houston [14th Dist.] 2008, pet. denied); Colbert v. Dep't of Family & Protective Servs., 227 S.W.3d 799, 816 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Appellate courts, however, can remand a case when further proceedings are necessary or when the interest of justice requires another trial. Tex.R.App. P. 43.3. This is often the case in situations that require reweighing evidence or finding facts. Although appellate courts can unfind facts, they are not fact-finding courts. See Parsons v. Parsons, 722 S.W.2d 751, 753 (Tex.App.-Houston [14th Dist.] 1986, no writ).

In determining conservatorship issues, trial courts focus on the best interest of the child. Vazquez v. Vazquez, 292 S.W.3d 80, 85 (Tex.App.-Houston [14th Dist.] 2007, no pet.). A trial court has wide latitude or discretion in deciding what is in the child's best interest. Id. Additionally, custody disputes are inherently fact-intensive. In re Vogel, 261 S.W.3d 917, 925 (Tex.App.-Houston [14th Dist.] 2008, no pet.). We routinely defer to the fact-finder in matters of credibility and demeanor, and particularly so in custody proceedings. Id. We have previously stated in cases involving involuntary termination of parental rights that appellate courts are “not in a position to determine whether simply to deny the petition for termination or render some other order in the best interest of the child.” In re C.M.C., 273 S.W.3d 862, 882 n. 13 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (quoting Colbert, 227 S.W.3d at 816). The circumstances surrounding the parent-child relationship may have changed since the trial court's original judgment, which would require a fact-finder to assess the new situation. Id. As with involuntary termination, the issue of conservatorship requires a fact-finder to review factors in deciding the best interest of the child. See Vazquez, 292 S.W.3d at 85; see cf. In re C.M.C., 273 S.W.3d at 882 n. 13. Thus, should we determine that the trial court erroneously handled the conservatorship in this case, we will remand rather than render.

B

We will first address Ann's sixth issue concerning the exclusion of her fact witnesses. Ann maintains that she sufficiently responded to Casper's request for disclosure relating to those witnesses-her father and two sisters-and the trial court erroneously struck their testimony. Furthermore, Ann argues that even if her responses warranted discovery sanctions, the sanctions the trial court imposed were too severe, especially when making a decision in the best interest of the children. Casper contends that Ann's responses were insufficient under Texas Rule of Civil Procedure 194.2(e) because they provided no description of her witnesses' connection to the case, other than noting how each was related to her. Casper urges that the sanctions were appropriate because under Texas Rule of Civil Procedure 193.6 a partial disclosure response warrants an automatic exclusion of that witness. Additionally, Casper argues that even if Ann's disclosure responses were sufficient, any error the trial court made was harmless because the stricken witnesses' testimony was cumulative and would not have changed the court's ruling.

The admission or exclusion of evidence rests within the sound discretion of the trial court. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex.2001); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995). A trial court abuses its discretion in admitting or excluding evidence if it acts without reference to any guiding rules and principles or if the act complained of is arbitrary and unreasonable. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). To show the trial court abused its discretion, the appellant must demonstrate that: (1) the court erred in not admitting the evidence; (2) the excluded evidence was controlling on a material issue dispositive of ...