Jenkins v. Jenkins

• Decision Date: 06 April 2000
• Docket Number: No. 08-99-00116-CV,08-99-00116-CV
• Citation: 16 S.W.3d 473
• Parties: (Tex.App.-El Paso 2000) JENNIFER LEIGH JENKINS, Appellant, v. CHRISTOPHER LEE JENKINS, Appellee
• Court: Texas Court of Appeals

Page 473

16 S.W.3d 473 (Tex.App.-El Paso 2000)

JENNIFER LEIGH JENKINS, Appellant, v. CHRISTOPHER LEE JENKINS, Appellee.

No. 08-99-00116-CV

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

April 6, 2000

Appeal from County Court at Law No. 2 of Ector County, Texas (TC# CC2-11,386) [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.

This is an appeal from the modification of a joint managing conservatorship in which Jennifer Leigh Jenkins challenges the designation of her former husband as having the right to establish the primary residence of their son. Finding no error, we affirm.

SUMMARY OF THE EVIDENCE

Jennifer and Chris Jenkins were divorced by final decree on December 31, 1997 and appointed joint managing conservators of their then three-year-old son, Zachary. Jennifer was granted the sole right to establish Zachary's primary residence. The decree specifically ordered that Jennifer "shall not reside with, nor have any unmarried males over the age of thirteen for overnight visits during any period that JENNIFER LEIGH JENKINS is in possession of the child." Additionally, the decree ordered:

[T]hat the primary residence of the child shall be established in Ector County, Texas. The parties shall not remove the child from Ector County, Texas for the purpose of changing the primary residence of the child until this order is modified by further order of the court of continuing jurisdiction or by written agreement signed by the parties and filed with the court.

With regard to the division of property, Jennifer was awarded the couple's home at 3620 North Adams in Odessa. However, the terms of the final decree did not fully comport with the trial court's judgment rendered in open court on September 19, 1997:

THE COURT: The child also, I will point out, must reside at that home unless they have prior order of the Court. Okay? . . . No change in the residence. [Emphasis added].

In May 1998, Chris Jenkins sought to correct the error in the decree concerning Zachary's primary residence via a motion for judgment nunc pro tunc. The motion was granted on May 27, 1998, and the final decree was modified to reflect that Zachary's primary residence was established at 3620 North Adams and that any change in residence required court approval. Jennifer did not appeal or otherwise challenge the judgment nunc pro tunc. At the modification hearing at issue here, however, Jennifer testified that she was unaware of the judgment nunc pro tunc.

On August 28, 1998, Chris filed a motion to enforce and a motion to modify the divorce decree. He alleged that since the divorce, Jennifer had continued to reside with her boyfriend, Sam Lance, first at 3620 North Adams and then at 2609 Spur, in violation of the divorce decree. He also contended that Jennifer had moved Zachary's primary residence from the North Adams home without court approval, and was cohabitating with Lance when she had possession of Zachary. Chris asked the court to find Jennifer in contempt and to modify the decree to designate him as the joint managing conservator having the sole right to establish the primary residence of Zachary.

In her answer, Jennifer admitted that she had moved to 2609 Spur, but claimed that the change of residence was only temporary. Once repairs on the home at 3620 North Adams were completed, she and Zachary would return. At the hearing on the motion, Jennifer also contended that she and Lance had entered into a common law marriage. The trial court found that she had violated the court's orders against moving the primary residence of the child and against having overnight male guests when she had possession of Zachary. The court did not hold her in contempt, but it did modify the decree so as to grant Chris the right to establish Zachary's primary residence under the joint managing conservatorship.

Upon request, the trial court entered findings of fact and conclusions of law. Pertinent to our analysis here, the court found:

* Jennifer was present in the courtroom when the court ordered that she not cohabitate with any man to whom she was not married when she had possession of Zachary.

* Jennifer had admitted to residing with Sam Lance at 2609 Spur.

* Jennifer had resided with Sam Lance at 2609 Spur when she had possession of Zachary.

* There was no evidence of a ceremonial marriage and no common law marriage was established.

* Jennifer changed the residence of the child and gave no notice.

* Jennifer had knowingly and intentionally violated the court's orders.

* The existing order regarding possession of the child had become inappropriate under the circumstances.

* Retention of the joint managing conservatorship was in Zachary's best interest.

* The award to Chris of primary custody and the right to establish the primary residence of Zachary would be a positive improvement and in the best interest of Zachary.

This appeal follows.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT MODIFICATION OF THE RIGHT TO ESTABLISH PRIMARY RESIDENCE

In her first two issues for review, Jennifer complains that the trial court abused its discretion when it transferred to Chris the right to establish the primary residence of the child because there was legally and factually insufficient evidence to support it. See TEX.FAM.CODE ANN. 156.202 (Vernon 1996). Where these two standards of review overlap, as they frequently do in family law cases, we employ a hybrid analysis.

Standard of Review

In considering a legal sufficiency or "no evidence" point, an appellate court considers only the evidence which tends to support the jury's findings and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App.--El Paso 1992, no writ). If any probative evidence supports the jury's determination, it must be upheld. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). However, a factual sufficiency point requires examination of all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 244 S.W.2d at 660; Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex.App.--El Paso 1998, no pet.). In an appeal from a bench trial, findings of fact are the equivalent of jury answers to special issues. Lindsey, 965 S.W.2d at 591. The reviewing court cannot substitute its conclusions for those of the trial court if there is sufficient competent evidence of probative force to support the trial court's findings. Id.

A trial court's order modifying a joint managing conservatorship will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Thompson v. Thompson, 827 S.W.2d 563, 566-67 (Tex.App.--Corpus Christi 1992, writ denied). The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner, or whether it acted without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). 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 occurred. Id. at 241-42. The question of conservatorship of a child is addressed to the sound discretion of the trial court when it sits as trier of fact. Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex.Civ.App.--Dallas 1981, no writ). The 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. Id. Thus, 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. Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex.App.--Houston [1st Dist.] 1996, no writ).

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 discretion standard, the normal sufficiency of the evidence review is part of the abuse of discretion review and not an independent ground for reversal. Crawford v. Hope, 898 S.W.2d 937, 940-41 (Tex.App.--Amarillo 1995, writ denied)(when standard of review is abuse of discretion, factual and legal sufficiency are not independent grounds of error); accord, Thomas v. Thomas, 895 S.W.2d 895, 898 (Tex.App.--Waco 1995, writ denied); In the Matter of the Marriage of Driver, 895 S.W.2d 875, 877 (Tex.App.--Texarkana 1995, no writ); Wood v. O'Donnell, 894 S.W.2d 555, 556 (Tex.App.--Fort Worth 1995, no writ); In the Interest of Pecht, 874 S.W.2d 797, 800 (Tex.App.--Texarkana 1994, no writ); but see Matthiessen v. Schaefer, 897 S.W.2d 825, 828 (Tex.App.--San Antonio 1994)(Duncan, J., dissenting), rev'd on other grounds, 915 S.W.2d 479 (Tex. 1995)(appellate court should review award of attorney's fees by normal sufficiency of evidence standard, and not subsume sufficiency of evidence into abuse of discretion standard).

We have previously agreed with Justice Duncan's dissenting opinion in Matthiessen. In Lindsey, 965 S.W.2d at 589, we addressed the conflict between the traditional sufficiency review and the abuse of discretion standard in the context of...