In re S.R.O.

• Decision Date: 07 July 2004
• Docket Number: No. 10-01-00184-CV.,10-01-00184-CV.
• Citation: 143 S.W.3d 237
• Parties: In the Interest of S.R.O., F.M.O., M.S.O., H.M.O., and Z.A.O., Children.
• Court: Texas Court of Appeals

143 S.W.3d 237

In the Interest of S.R.O., F.M.O., M.S.O., H.M.O., and Z.A.O., Children.

No. 10-01-00184-CV.

Court of Appeals of Texas, Waco.

July 7, 2004.

Appeal from the 18th District Court, Somervell County, John Edward Neill, J Kimberly Pack Wilson, The Allen Firm, Stephenville, for Gary P. Olson.

Michael S. Griffin, Cleburne, for Priscilla D. Garza.

Terri G. Wilson, MacLean & Boulware, Cleburne, Attorney Ad Litem for S.R.O., F.M.O., M.S.O., H.M.O., Z.A.O.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

Priscilla Garza and Gary Olson filed competing motions to modify the custody provisions of their divorce decree and competing motions to enforce various provisions of the decree. The court granted Garza's motion to modify in part, wholly denied Olson's motion to modify, and granted each party's motion to enforce in part. Olson presents four issues in which he contends that the trial court erred by: (1) failing to make and file findings of fact and conclusions of law; (2) granting Garza's motion to modify; (3) failing to render judgment in his favor for fifty percent of the children's health care expenses not reimbursed by insurance and incurred while Olson had a temporary health insurance policy in effect; and (4) failing to hold Garza in contempt for allowing the children to remain unsupervised overnight with her extended family.

In response to Olson's first issue, we abated the appeal to the trial court for entry of findings of fact and conclusions of law. See In re S.R.O., No. 10-01-00184-CV (Tex.App.-Waco May 28, 2003, order) (not designated for publication). The trial court has made those findings and conclusions. Olson now presents a supplemental issue challenging the adequacy of the court's findings of fact.

BACKGROUND

Garza and Olson entered a mediated settlement agreement to resolve their divorce. Pursuant to their agreement, the December 1998 divorce decree provided in pertinent part that:

• they would be joint managing conservators of the children;

• Olson's possession of the children on the first, third and fifth weekends of the month would extend from Friday afternoon to Tuesday morning;

• Olson would have possession of the children every Sunday except Mother's Day from noon until 7:00 p.m.; and

• Olson would obtain health insurance for the children.

Garza filed her motion to modify the decree in July 1999. She asked that she be appointed sole managing conservator and that Olson's weekend possessory rights be modified in accordance with the standard possession order because of changed circumstances and because the provisions of the decree had become unworkable and inappropriate.

Olson filed a counter-motion to modify. He alleged that he should be appointed sole managing conservator because the children's living environment posed a danger to their physical and emotional health, because of changed circumstances, and because the joint managing conservatorship had proved unworkable and inappropriate. Olson specifically alleged that the children's environment posed a danger because, among other allegations:

• Garza had failed to seek counseling as required by the decree; and

• her husband Raul had endangered the children with a "folk remedy."

Olson asked the court to restrict Garza's possessory rights for the same reasons.

Olson alleged in his motion to enforce that Garza had violated the terms of the divorce decree by:

• leaving the children alone with her maternal extended family;

• failing to obtain counseling for herself;

• failing to pay fifty percent of the children's medical expenses; and

• enrolling the children in a new school district without his consent.

He asked for a judgment for arrearages for her portion of the unreimbursed health care expenses.

Garza responded with her own motion to enforce the decree, in which she alleged that Olson had violated the terms of the decree by failing to provide health insurance for the children and by failing to return the children to the designated adult "in a responsible manner."

At the hearing, Garza testified that her remarriage constituted a material and substantial change of circumstances which would warrant her appointment as sole managing conservator and a change in the provisions of the decree regarding possession of the children. She explained that the decree has proved unworkable because Olson and she had been unable to agree about the children's education and medical care. She stated that a modification of the decree would be a positive improvement for the children and in their best interest because it would allow them to more fully develop their relationship with Raul and herself as a family, it would allow them to have more meaningful weekend-long activities together, and it would allow her to make decisions more effectively and efficiently for the children regarding their education and medical care.

Garza disputed many of Olson's allegations. She testified that she has been diagnosed with dissociative identify disorder, also referred to as multiple personality disorder ("DID"). She began seeing a counselor who holds herself out as one who works with DID patients in January 1999. According to Garza, her counselor has fifteen years' experience working with DID patients.

A particularly contentious issue appears to have been the "folk remedy" which Raul used for earaches. Garza explained that Raul would roll a newspaper into a cone and insert it into the affected ear. He then lit the end of the newspaper. Garza testified that the smoke and heat drew "the air and the pressure up out of the ear relieving the pain." She stated that Raul or she would remove the cone as the fire burned down and put it out. No one was ever burned. Garza testified that they did this to three of the children and to herself. She said that it relieved her symptoms.

Garza explained that she had failed to reimburse Olson for her share of the children's medical expenses because he had not provided her copies of the receipts. She conceded however that they had agreed that he could provide only monthly summaries of the pertinent expenses.

Raul explained that he learned the folk remedy from his mother who used it for his brothers and sisters and himself as children. No one has ever been hurt by the treatment. He stated that it would be in the best interest of the children for them to have full weekends so they could grow closer as a family.

Olson testified that Garza's counselor does not specialize in the treatment of persons with DID. He identified a psychologist who does specialize in DID. He stated that Garza and he had agreed that he could provide her monthly summaries of the children's medical bills rather than the actual receipts. She has not reimbursed him for her share of any of these expenses.

Olson explained that primary custody by Garza poses a danger to the children because: the folk remedy is dangerous; the children are usually ill when they visit; Garza had failed to appropriately dispense medications to the children; the Garzas use inappropriate discipline; and the children have suffered various injuries while in the Garzas' care. Olson testified that the children fear Raul because he does not allow them to speak to Olson at church and in other settings.

Olson testified that he obtained a short-term health insurance policy for the children after the divorce which was in effect from December 14, 1998 until April 13, 1999. The children were without insurance for three months until he secured permanent insurance in July 1999.

At the conclusion of the hearing, the court denied each party's request to be appointed sole managing conservator but gave Garza sole authority to decide which school the children would attend and to make non-emergency medical decisions on behalf of the children. The court also granted Garza's request to modify the provisions of the decree regarding possession and access to comport with the standard possession order. The court wholly denied Olson's motion to modify.

Regarding enforcement issues, the court found that Garza had violated the decree by failing to consult with Olson before enrolling the children in the new school and by failing to pay fifty percent of the children's unreimbursed health care expenses incurred after Olson obtain permanent health insurance in July 1999. The court found that Olson had violated the decree by failing to obtain appropriate health insurance for the children until July 1999.

ADEQUACY OF FINDINGS

In response to this Court's abatement order, the trial court made findings of fact and conclusions of law. Thus, we do not further address Olson's first issue challenging the court's failure to do so. Olson contends in a supplemental issue that the findings do not support the judgment and are otherwise inadequate because:

• findings nos. 8, 15, and 17 are conflicting because the latter two find a material and substantial change of circumstances while finding no. 8 does not;

• the findings fail to state specific facts to support the court's finding no. 15 that there has been a material and substantial change of circumstances;

• the findings fail to state specific facts to support the court's finding no. 14 that the parties' prior agreed possession order had become unworkable or inappropriate; and

• the court failed to find that a modification of the terms of the conservatorship order would be a positive improvement for the children.

CONFLICTS

An appellate court must attempt to reconcile conflicts in findings of fact. Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 770 (Tex.App.-Corpus Christi 2001, no pet.); Grossnickle v. Grossnickle, 935 S.W.2d 830, 841 (Tex.App.-Texarkana 1996, writ denied). In the three allegedly conflicting findings, the court found:

8. that there has been no material and substantial change in the circumstances of the children or one or both of the Joint Managing Conservators since the rendition of...