Iliff v. Iliff

• Decision Date: 21 July 2009
• Docket Number: No. 03–08–00382–CV.,03–08–00382–CV.
• Citation: 339 S.W.3d 126
• Parties: James Derwood ILIFF, Appellant,v.Jerilyn Trije ILIFF, Appellee.
• Court: Texas Court of Appeals

339 S.W.3d 126

James Derwood ILIFF, Appellant,

v.Jerilyn Trije ILIFF, Appellee.

No. 03–08–00382–CV.

Court of Appeals of Texas, Austin.

July 21, 2009.

Thomas M. Michel, Griffith, Jay & Michel, LLP, Fort Worth, TX, for Appellant.Frank B. Suhr Jr., New Braunfels, TX, for Appellee.Before Justices PATTERSON, PEMBERTON and WALDROP.

MEMORANDUM OPINION

JAN P. PATTERSON, Justice.

Appellant James Derwood Iliff (“James”) seeks review of the trial court's judgment entering a final decree of divorce from appellee Jerilyn Trije Iliff (“Jerilyn”). In three issues, James contends that the trial court abused its discretion in entering the final divorce decree by ordering child support payments in excess of the statutory guidelines, by ordering an unfair division of the marital estate, and by failing to appoint James as joint managing conservator with standard periods of unsupervised possession. Because we conclude there was no error in the trial court's judgment, we affirm.

BACKGROUND

James and Jerilyn were married on April 7, 1990. Three children were born of their marriage: C.J., a son, on July 14, 1993, C.T., a daughter, on January 3, 1997, and C.M., a daughter, on February 10, 2001. Jerilyn filed for divorce on June 28, 2006. After a trial to the bench, the trial court entered a final decree of divorce on May 5, 2008.

The district court heard evidence that throughout most of the marriage, James worked in the chemical industry and was the “primary bread winner” of the family, earning between $90,000 to $100,000 per year.¹ From the time they were married until 1998, Jerilyn worked at various rehabilitation centers in Dallas, Houston, and Austin. In 1998, Jerilyn quit her job as a supervisor at St. David's to stay home with the children. The following year, Jerilyn returned to work part-time at St. Stephen's Episcopal School where the children attended school. Although her salary was substantially less than James's, Jerilyn received a tuition subsidy to help defray the cost of the children's attendance at St. Stephen's.

In 2005, James's company, Ashland Chemicals, Inc., was sold to Air Products and Chemicals, Inc. Later that year, James began hearing voices and saying that “people were watching us, that people were intercepting faxes from our home.” He began to be more verbally abusive to Jerilyn and the children. Without explanation, on January 1, 2006, James quit his job with Air Products.

When James quit his job, Jerilyn obtained additional work to help pay the family's expenses. Jerilyn testified that she began working “approximately 50 hours a week” at three more jobs. Jerilyn testified that she began working as a PRN Therapist for Deer Creek Nursing Center and Brown Carnie, and that she also worked for Wimberley Home Health Care and as the after-school coordinator at St. Stephen's School, so that she could “get a break on those costs.” The record reflects that from January 1, 2006, through September 2006, James made several withdrawals from his retirement accounts totaling $85,000 to help the family meet its expenses. The parties agree that part of this money was used to pay off the liens on Jerilyn's Ford Expedition and James's truck and the lien on a Kubota tractor; however, the record reflects that the total value of these notes was approximately $45,000 and the remaining $40,000 was unaccounted for by James.

Jerilyn testified that, after he quit his job, James's behavior became erratic and irrational. He began talking about people listening to his telephone conversations, intercepting his faxes, and spying on him through the skylights. Jerilyn testified that James bought a .357 Magnum pistol because he thought that people were spying on him. Jerilyn averred that James's drinking became excessive and that she found empty tequila bottles in the closet. Jerilyn testified that James bought another gun and was sleeping excessively, did not bathe or change his clothes regularly, and was not brushing his teeth or “doing general hygiene.” Jerilyn testified that there were occasions when she left the children at home with James to go to home health care appointments for her job and that, when she returned home, she would find James asleep in a locked office downstairs.

Jerilyn also testified that, one day in May 2006, the family was attending one of her daughter's dance lessons and that she and James got into an argument about his treatment of their son. That evening James became very ill, as if he had a stomach virus, and he was sick all night. The next day, Jerilyn came home to find him hallucinating downstairs and saying that there was a man in a black hat. Jerilyn took him to the hospital, and he was admitted to the intensive care unit where he stayed for five days. Jerilyn testified that the hospital had to restrain James because of his paranoid behavior and that they administered anti-psychotic medication to calm him down.

Jerilyn filed for divorce in June 2006. Although Jerilyn and the children left the family home briefly so that Jerilyn could spend time with her father, who was dying of prostate cancer, the parties worked out an agreement under which James left and Jerilyn and the children returned to the family home before school started in the fall of 2006. From the time he left in the fall of 2006 until the trial in the spring of 2008, the record reflects that James saw his children only four times. The parties dispute whether James made additional attempts to see his children, but they did reach an agreement that the children would call him once a week during the hours of 6:00 p.m.–8:00 p.m. on Wednesdays. James testified that he was traveling and trying to start his business and, therefore, he was not able to see his children on a regular basis. But he also testified that he was in central Texas at his property in Wimberley approximately once a month.

The record reflects that James lived primarily with his mother in the Dallas area from the fall of 2006 until trial in 2008. The record also reflects that James was hospitalized three more times during that period of time, but that the doctors found nothing physically wrong with him other than severe dehydration.

In 2007, the parties reached a mediated settlement agreement on temporary orders that was later reduced to a signed court order requiring the parties to participate in an interview with Dr. Caryl Dalton, a psychologist in Austin, Texas. After that interview, the parties were also required to participate in any further evaluation or testing recommended by Dr. Dalton. As part of that court order, the parties were required to follow the recommendations of Dr. Dalton regarding visitation between James and the children pending further court order. After conducting the interview, Dr. Dalton made no further recommendation for evaluation of Jerilyn, but she recommended that James undergo both a neuropsychological exam and a neurological evaluation.

Although James underwent the neurological evaluation, he never obtained a neuropsychological exam, despite two additional court orders that he do so. The neurological evaluation was conducted by Dr. Robert Izor and was admitted into evidence at trial. Dr. Izor's evaluation reflected a diagnosis of paranoia and psychogenic movement disorder and recommended treatment with an anti-depressant or anti-anxiety medication, which James refused.

Based on his erratic behavior and repeated failure to comply with court orders for a neuropsychological exam, as well as the recommendations of Dr. Dalton, the court found that the standard possession order as contemplated in the family code was not appropriate and was not in the best interest of the children. Accordingly, the court named Jerilyn as sole managing conservator with James as possessory conservator. But the court restricted James's access to the children until he completed the required neuropsychological exam.

With regard to child support, the trial court found that James was intentionally unemployed or underemployed as a result of his own choosing. Although there was testimony and evidence in the record from three doctors, including Dr. Dalton, Dr. Izor, and Dr. James Williams, who had evaluated or treated James between the time Jerilyn filed for divorce up until trial, none of these doctors testified that there was any reason that James could not obtain gainful employment. James's mother Cynthia Iliff testified that he could not stand for long periods of time because of a martial arts injury that he had suffered just prior to Jerilyn's filing for divorce and that this injury affected his gait, but none of the witnesses at trial testified that this injury would prevent James from working.

James testified that he was not disabled and that he had tried to start his own tractor business. James testified that his doctors ran extensive tests on him and found nothing wrong with his heart and that he had never been told by a doctor that he suffers from a condition that prevents him from working. He testified that his income from his tractor business was $1,287 in 2006 and about $1,200 in 2007. James also testified that he made about $1,200 “in the past two years” doing business management consulting.

Although his income was minimal, the record reflects that James had been paying $251.33 in child support for six months prior to trial. James testified that he had contracted for a fence and horse corral totaling $6,480 ² to be built on the Wimberley property in violation of a court order. And he testified that he had been paying “[a] couple of hundred dollars a month” towards the note on the Wimberley property as well as the annual taxes of $1,200 to $1,500 per year. When asked where he obtained the money to pay for these expenses, James testified, “It's coming from my savings.”

In addition to the $85,000 he withdrew from his retirement accounts in 2006, the record reflects that James withdrew an additional $20,000 in 2007 to pay his lawyers. The record...