In the Interest of Christopher Walters

• Decision Date: 11 January 2001
• Docket Number: No. 06-00-00040-CV,06-00-00040-CV
• Citation: 39 S.W.3d 280
• Parties: (Tex.App.-Texarkana 2001) IN THE INTEREST OF CHRISTOPHER WALTERS, A CHILD
• Court: Texas Court of Appeals

Page 280

39 S.W.3d 280 (Tex.App.-Texarkana 2001)

IN THE INTEREST OF CHRISTOPHER WALTERS, A CHILD

No. 06-00-00040-CV

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Argued November 21, 2000

Decided January 11, 2001

On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 65911

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

Ross, Justice.

Deborah Walters appeals from the trial court's judgment granting her divorce from Richard Walters. A jury trial was held on the issue of managing conservatorship of Christopher Walters, the couple's five-year-old son. The jury recommended that Richard be awarded sole managing conservatorship. In the divorce decree, the trial court appointed Richard sole managing conservator and Deborah possessory conservator. The trial court also entered the following order regarding possession and access:

IT IS ORDERED AND DECREED that Deborah Walters, as a possessory conservator, shall have possession of the child at all times mutually agreed between the parties.

In its findings of fact and conclusions of law the trial court found that implementation of the standard possession order (Tex. Fam. Code Ann. §§ 153.312, 153.313 (Vernon Supp. 2001)) for Deborah's possession of Christopher is not in the best interest of the child; that Deborah is an alcoholic and has been one both before and during the marriage; that she has hidden her alcohol consumption throughout the marriage; that as a result of her alcohol consumption she placed Christopher in a potentially harmful position by becoming intoxicated to the point of passing out while she was alone with him; that certain parts of her testimony were not credible; that other parts of her testimony in this and other proceedings were false; and that she must exhibit a three-year period of sobriety before implementation of the standard possession order would be in Christopher's best interest.

On appeal, Deborah contends the trial court abused its discretion in entering its order regarding possession because (1) it effectively denies her possession or access without good cause; (2) it fails to specify the times and conditions for possession or access without a showing of good cause that a specific order is not in the best interest of the child; and (3) it deviates from the standard possession order without a sufficient showing that deviation from such order is in the best interest of the child. In addition, Deborah contends there is insufficient evidence to overcome the presumption in favor of appointing her joint managing conservator of Christopher, that the trial court erred in submitting the issue of managing conservatorship to the jury when neither party requested such appointment in their pleadings, and that the trial court erred in denying her a jury trial on the issue of access to Christopher.

Because most of Deborah's contentions center on the evidentiary basis for the trial court's order, a review of the evidence is necessary. In support of the trial court's order, Richard points to the following evidence: Deborah testified that she is an alcoholic. She began drinking when she was twenty-three years old, and her alcoholism progressed rapidly until she was drinking every night by the time she was twenty-eight years old. Also when she was twenty-eight, she was hospitalized for a drug overdose that involved a suicide attempt. Thereafter, she completed a thirty-day in-patient treatment program for alcoholism. By her own admission, however, she began drinking again about three days later.

Deborah and Richard married about two years later. Richard testified that Deborah told him about her alcoholism before they were married, but that she asserted her drinking was under control. Richard works as a helicopter pilot and was away from home every other week during the marriage. Deborah testified that she drank while Richard was away and that on more than one occasion she drank to the point of passing out while Christopher was in her care. Richard testified that he came home one night to find Deborah passed out in a chair and later discovered the chair was soaked with urine. Deborah admitted to having violent rages in front of Christopher when she was drunk. Richard testified that she physically attacked him one time in front of Christopher. When Richard filed for divorce, Deborah concealed her whereabouts for two and a half days by going to a hotel and drinking.

Richard contends the evidence shows that Deborah attempted to hide her drinking from him and from her employer. Deborah testified that she attempted to hide her drinking from Richard. Deborah and Richard both testified that she hid alcohol around their house. Deborah's supervisor testified that Deborah received the highest performance evaluations. However, he admitted that he was not aware of her pattern of drinking, and he admitted that she had some problems with absenteeism.

The trial court found that Deborah's testimony regarding her recovery from alcoholism was not credible. In fact, the court found that Deborah gave false testimony at this and prior proceedings in an attempt to influence the court to give her managing conservatorship of Christopher. Deborah testified that she was a binge drinker who engaged only in periodic binges during her marriage. When confronted with statements she made to her counselor that she drank at least eight ounces of bourbon every night, Deborah disputed the frequency of her drinking. However, her counselor contradicted her testimony. He testified she told him she drank frequently over a ten-year period, especially when Richard was away, when she drank nearly every night.

Deborah testified at a prior hearing that she was attending Alcoholics Anonymous (A.A.). Yet, at the same time she told her counselor that she was not attending A.A. and refused to attend. It was only after the trial court ordered her to attend that she began attending.

Deborah's counselor testified that he instructed her not to have Christopher sleep with her because it might encourage him to become overly dependent on her. At some point, Deborah assured him that Christopher was not sleeping with her. Yet, Deborah testified that Christopher was sleeping with her after she had told her counselor that he was not.

In her challenge to the trial court's order, Deborah observes that despite her alcoholism, she has maintained employment with the same employer for over ten years. She has no criminal record. She attends regular counseling and A.A. meetings and claims to have been sober for almost a year. Her counselor testified that there is no evidence she has been drinking during that time. Richard agreed. Deborah and her counselor both expressed the opinion that her life has improved over that year. Her counselor also expressed the opinion that she is not a danger to Christopher.

The best interest of the child is the primary consideration in determining conservatorship and possession of and access to the child. Tex. Fam. Code Ann. § 153.002 (Vernon 1996). A parent must be appointed sole managing conservator, or both parents must be appointed joint managing conservators, unless the trial court finds that doing so would not be in the best interest of the child because it would significantly impair the child's physical health or emotional development. Tex. Fam. Code Ann. § 153.131(a) (Vernon Supp. 2001). If the trial court appoints a managing conservator, it may appoint one or more possessory conservators. Tex. Fam. Code Ann. § 153.006(a) (Vernon 1996). In fact, the trial court must appoint as possessory conservator a parent who is not appointed a managing conservator, unless it finds that doing so 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. § 153.191 (Vernon 1996).

Though courts sometimes use the words possession and access interchangeably, they are used differently in the Texas Family Code.¹ A person with a right of access to a child may approach him, communicate with him and visit with him, but may not take possession or control of the child away from the managing conservator. Hopkins v. Hopkins, 853 S.W.2d 134, 137-38 (Tex. App.—Corpus Christi 1993, no writ). A person with a right to possession of a child may exercise possession and control of the child, to the exclusion of all other persons, including the managing conservator, during periods of possession. Id.

Deborah contends the trial court's order effectively denies her possession of and access to Christopher by ordering that she have possession "at all times mutually agreed between the parties." The trial court has discretion to determine the terms of possession or access by a possessory conservator. Thompson v. Thompson, 827 S.W.2d 563, 566 (Tex. App.—Corpus Christi 1992, writ denied). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles, i.e., whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

Deborah cites Roosth v. Roosth, 889 S.W.2d 445 (Tex. App.—Houston [14th Dist.] 1994, writ denied), which involved an order worded similarly to the order in the present case that the court of appeals found was incapable of enforcement by contempt and gave the managing conservator complete discretion to determine the times and conditions of possession and access. Id. at 452. The court held that the order's unenforceability and the absolute discretion it provided effectively denied the other parent's right of access. Id. Such a denial, the court held, could not be accomplished under then Tex. Fam. Code Ann. § 14.03(d) without a showing that access would endanger the physical or emotional welfare of the children, which the court found lacking. Id.; see also Act of May 5, 1989, 71st Leg., R.S., ch. 617, § 8, 1989 Tex....