Hopkins v. Hopkins

• Decision Date: 01 April 1993
• Docket Number: No. 13-92-111-CV,13-92-111-CV
• Citation: 853 S.W.2d 134
• Parties: James Douglas HOPKINS, Appellant, v. Kathryn Patricia HOPKINS, Appellee.
• Court: Texas Court of Appeals

Page 134

853 S.W.2d 134

James Douglas HOPKINS, Appellant, v. Kathryn Patricia HOPKINS, Appellee.

No. 13-92-111-CV.

Court of Appeals of Texas,

Corpus Christi.

April 1, 1993.

Lane D. Thibodeaux, Bryan, for appellant.

Jay B. Goss, Bruchez, Goss, Thornton & Meronoff, Bryan, for appellee.

Before NYE, C.J., and FEDERICO G. HINOJOSA, Jr., and GILBERTO HINOJOSA, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

James Douglas Hopkins appeals from a divorce decree containing provisions for conservatorship of the marriage's three children. By two points of error, he complains that the trial court abused its discretion by failing to appoint him possessory conservator of the children and by imposing greater restrictions and limitations on his possession of and access to the children than are necessary to protect the children's best interest. We reverse only that part of the trial court's decree concerning conservatorship and remand the case to the trial court for further proceedings.

Appellant and appellee were married on September 30, 1985, and separated on or about November 23, 1990. Appellant and appellee have three sons, the eldest being born on May 25, 1986, and the youngest being born on November 18, 1990.

On November 28, 1990, appellee filed an application for a protective order in the County Court at Law No. 1 of Brazos County, requesting the trial court to order appellant to pay child support and to prohibit appellant from committing acts of family violence, from communicating with appellee or members of her household, and from interfering with appellee's possession of the children. The trial court signed an ex-parte temporary protective order on November 28, 1990, and ordered appellant to appear before it on December 11, 1990. Appellant appeared as ordered, and the trial court heard evidence. On December 18, 1990, the trial court signed a protective order restraining appellant from committing acts of family violence, communicating with appellee or members of her household, and interfering with appellee's possession of the children. The trial court appointed appellant temporary possessory conservator of the children and granted appellant possession of the children for a two hour period on alternate Saturdays. Appellee was ordered to surrender the children to appellant at the public library, and appellant was ordered to return the children to appellee at the public library. Appellant was further ordered to report for counseling services, to submit himself to prescribed treatment, and to attempt to gain employment. The trial court ordered that the protective order be effective through December 11, 1991, unless otherwise ordered by the trial court or another court having jurisdiction under TEX.FAM.CODE ANN. § 71.13 (Vernon Supp.1993).

On January 30, 1991, appellee filed a petition for divorce in the County Court at Law No. 2 of Brazos County, alleging that the marriage had become insupportable because of discord or conflict of personalities and appellant's cruel treatment of her. Appellee requested the trial court appoint her as the children's managing conservator. The protective order case was transferred to the County Court at Law No. 2 and consolidated with the divorce case. On June 13, 1991, the trial court heard evidence and then recessed the case to allow further evidence to be produced. The hearing was resumed on December 5, 1991, and on that day the trial court entered a final decree of divorce, appointing appellee managing conservator of the three children. The trial court refused to appoint appellant possessory conservator and refused to allow appellant to have possession of the children. Nevertheless, the trial court allowed appellant to have access to the children during two hours every other Sunday under the supervision of two competent adults to be designated by appellee. On January 2, 1992, the trial court amended the divorce decree to legally change appellee's name.

By his first point of error, appellant complains that the trial court abused its discretion by failing to appoint him possessory conservator of the children.

"The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to a child." TEX.FAM.CODE ANN. § 14.07(a) (Vernon Supp.1993). Trial courts have wide discretion in determining what is in the best interest of the child. Weimer v. Weimer, 788 S.W.2d 647, 650 (Tex.App.--Corpus Christi 1990, no writ). The trial court's judgment regarding what serves the best interest of the children with regard to child support and visitation, specifically the establishment of the terms and conditions of conservatorship, is a discretionary function of the trial court and will only be reversed upon a determination that the trial court has abused its discretion. Thompson v. Thompson, 827 S.W.2d 563, 566 (Tex.App.--Corpus Christi 1992, writ denied); MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex.App.--Corpus Christi 1990, writ denied). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).

If a managing conservator is appointed for a child, the court may appoint one or more possessory conservators and set the time and conditions for possession of or access to the child by the possessory conservators and others. TEX.FAM.CODE ANN. § 14.03(a) (Vernon 1986). The court shall appoint as a possessory conservator the parent who is not appointed as a sole or joint managing conservator unless it finds that parental possession or access is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child. TEX.FAM.CODE ANN. § 14.03(d) (Vernon Supp.1993) (emphasis added). A possessory conservator's rights, privileges, duties, and powers are subject to any limitations expressed in the decree. TEX.FAM.CODE ANN. § 14.04 (Vernon 1986).

The trial court, on request, filed findings of fact and conclusions of law. The trial court found that appellant was previously convicted for delivering marihuana, that he physically and emotionally abused appellee and the children, that he neglected the children when they were in his care, that he forced appellee and the children to live in an "unsanitary and inadequate home environment," that he "has behaved in an erratic and sometimes bizarre manner," and that he missed scheduled visits with the children. The trial court further found:

26. It would not be in the best interest of the children for Respondent to be appointed Possessory Conservator of the children.

27. Respondent's possession of or access to the children would endanger their physical or emotional welfare unless such possession and access is strictly supervised, time-limited and controlled.

The restrictions imposed by the Amended Decree of Divorce do not exceed those required to protect the best interest of the children.

The Family Code does not define the terms "possession" and "access." The Family Code does not distinguish between supervised and unsupervised "access" or supervised and unsupervised "possession" when it declares that a trial court has a duty to appoint a parent as a possessory conservator of a child. TEX.FAM.CODE ANN. § 14.03(d). When a statute does not define a term, we apply the term's ordinary meaning. Hopkins v. Spring Indep. School Dist., 736 S.W.2d 617, 619 (Tex.1987); Alexander v. State, 803 S.W.2d 852, 855 (Tex.App.--Corpus Christi 1991, writ denied). We consult generally accepted sources for common and legal definitions of words. Alexander, 803 S.W.2d at 855.

"Access" means:

freedom of approach or communication; or the means, power, or opportunity of approaching, communicating or passing to and from ... "Access" to property does not necessarily carry with it possession.

BLACK'S LAW DICTIONARY 13 (5th ed. 1979).

"Possession" means:

the detention and control, or the manual or ideal custody, of anything which may be the subject of property for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. Act or state of possessing. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.

BLACK'S LAW DICTIONARY 1047 (5th ed. 1979).

Children are not property; however, they are subject to control by...