Interest of Pena

• Decision Date: 29 July 1999
• Docket Number: No. 08-98-00211-CV,08-98-00211-CV
• Citation: 999 S.W.2d 521
• Parties: (Tex.App.-El Paso 1999) IN THE INTEREST OF CHRISTINA COCIECAE DE LA PENA, A Minor Child
• Court: Texas Court of Appeals

Page 521

999 S.W.2d 521 (Tex.App.-El Paso 1999)

IN THE INTEREST OF CHRISTINA COCIECAE DE LA PENA, A Minor Child.

No. 08-98-00211-CV

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

July 29, 1999

Appeal from 318th District Court of Midland County, Texas (TX# 29,333) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.

O P I N I O N

ANN CRAWFORD McCLURE, Justice

In this child custody case, Elsa Doss appeals from an order appointing her brother, Caesar De la Pena, as a joint managing conservator of his daughter, Christina. Finding that Elsa failed to rebut the parental presumption, we affirm.

FACTUAL SUMMARY

Christina was born November 19, 1991, to Sonia Rodrigues and Caesar De la Pena, who at the time was in prison for burglary. Christina lived with her paternal grandparents, her maternal grandparents, and an aunt until Caesar was released from prison, at which time Christina was approximately eighteen months old. Thereafter, Caesar and Christina lived with the child's maternal grandparents in San Jose, California.

In late 1993 or early 1994, Caesar and Sonia agreed that Elsa, Caesar's sister, would temporarily care for Christina and her older brother, Albert. In February 1994, Elsa and her lesbian partner, Tracie Wood, flew to California to pick up the children and returned with them to Midland. The children remained with Elsa and Tracie until August 1994, when Caesar traveled to Midland to pick up Albert. It was agreed at that time that Christina would remain with Elsa for another month at which point Sonia would pick her up. Sonia failed to do so. Finally, in November, Caesar indicated that he wanted to regain possession of Christina as well. Elsa made various excuses to postpone Caesar's trip to Midland, and in February 1995, Elsa filed suit for sole managing conservatorship of Christina.

On February 22, 1995, Elsa, Sonia, and Caesar appeared for a hearing on temporary conservatorship. Elsa and Sonia were appointed temporary joint managing conservators, with Elsa having the right of primary possession. Caesar was appointed temporary possessory conservator and both he and Sonia were granted restricted visitation with Christina.

In April 1996, Caesar was allowed an unsupervised weekend visit with Christina. After returning the child to Elsa, Caesar filed child abuse charges against Tracie. Both Child Protective Services and the Midland Police Department investigated the allegations and dismissed the charges as unfounded. At another hearing the following month, Caesar was granted an additional weekend visit per month. Sonia failed to appear at that hearing and she has had no further contact with Christina. Caesar continued to call his daughter and visited her twice between April 1996 and September 1997.

Following a final hearing on September 12, 1997, the trial court appointed Elsa and Caesar joint managing conservators of Christina with Caesar having the right to determine Christina's primary residence. In two issues for review, Elsa challenges the trial court's decision to deny her request for sole managing conservatorship, and in the alternative, she complains of the court's designation of Caesar as the child's primary caretaker in a joint managing conservatorship.

STANDARD OF REVIEW

Our consideration of this appeal requires the application of overlapping relevant standards of review.

Traditional Sufficiency Review

A "no evidence" or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact-finding. There are basically two separate "no evidence" claims. Where, as here, the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as "a matter of law." When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of "no evidence to support the finding." See Creative Manufacturing, Inc. v. Unik, 726 S.W.2d 207, 210 (Tex.App.--Fort Worth 1987, writ ref'd n.r.e.). The standard of review requires a determination by the appellate court as to whether, considering only the evidence and inferences that support a factual finding in favor of the party having the burden of proof in a light most favorable to such findings and disregarding all evidence and inferences to the contrary, there is any probative evidence which supports the finding. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Southwest Craft Center v. Heilner, 670 S.W.2d 651, 653 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.); Terminix International, Inc. v. Lucci, 670 S.W.2d 657, 662 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.); Dayton Hudson Corp. v. Altus, 715 S.W.2d 670, 672 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). If more than a scintilla of evidence supports the finding, the "no evidence" point fails. Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App.--El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex.App.--El Paso 1994, writ denied).

"Insufficient evidence" or factual insufficiency involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. Where, as here, the party having the burden of proof complains of an unfavorable finding, the point of error should allege that the findings "are against the great weight and preponderance of the evidence." The "insufficient evidence" point of error is appropriate only when the party without the burden of proof on an issue complains of the court's findings. Neily v. Aaron, 724 S.W.2d 908, 912 (Tex.App.--Fort Worth 1987, no writ).

The test for factual insufficiency is set forth in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). In reviewing a point of error asserting that a finding is against the great weight and preponderance of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact as well as evidence which tends to disprove its existence. It is for the fact finder to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex.App.--El Paso 1981, no writ). The finding should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence. Id. The parlance used by the courts of appeals is that such a finding "shocks the conscience" or that it is "manifestly unjust," limited by such phrases as "the jury's determination is usually regarded as conclusive when the evidence is conflicting," "we cannot substitute our conclusions for those of the jury," and "it is the province of the jury to pass on the weight or credibility of a witness's testimony." See e.g., Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex. 1994); Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex.App.--El Paso 1993, writ denied). Thus, we cannot substitute our judgment for that of the fact finder even if we find a fact contrary to that found by the jury, provided the jury finding is supported by probative evidence and is not against the great weight and preponderance of the evidence. If, however, the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained. In a bench trial, the findings of fact made by the trial judge are the equivalent of a jury answer in the charge and subject to the same scrutiny on appeal. Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex.App.--El Paso 1998, no pet.).

Abuse of Discretion Standard

We review the trial court's determination of conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex.App.--Austin 1997, no writ); MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex.App.--Corpus Christi 1990, writ denied). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Doyle, 955 S.W.2d at 479. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate justice in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242; In the Interest of A.D.H., 979 S.W.2d 445, 447 (Tex.App.--Beaumont 1998, no writ). "[T]he trial court is in the best position to observe the demeanor and personalities of the witnesses and can 'feel' the forces, powers, and influences that cannot be discerned by merely reading the record." A.D.H., 979 S.W.2d at 447, quoting Warchol v. Warchol, 853 S.W.2d 165, 168 (Tex.App.--Beaumont 1993, no writ). Consequently, an abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence. A.D.H., 979 S.W.2d at 447; Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex.App.--Houston [1st Dist.] 1996, no writ). Furthermore, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. Id.

An appeal directed toward demonstrating an abuse of discretion is one of the tougher appellate propositions. Most of the appealable issues in a family law case are evaluated against an abuse of discretion standard, be it the issue of property division incident to divorce or partition, conservatorship, visitation, or child support. In some instances, the abuse of discretion standard overlaps the traditional sufficiency review. Several courts have concluded that when the trial court's ruling on the merits is reviewed under an abuse of...