Lewelling v. Lewelling, 08-89-00105-CV

• Citation: 774 S.W.2d 801
• Decision Date: 19 July 1989
• Docket Number: No. 08-89-00105-CV,08-89-00105-CV
• Parties: Brenda Kay LEWELLING, Appellant, v. Carl and Melba LEWELLING, Appellees.
• Court: Court of Appeals of Texas

Page 801

774 S.W.2d 801

Brenda Kay LEWELLING, Appellant, v. Carl and Melba LEWELLING, Appellees.

No. 08-89-00105-CV.

Court of Appeals of Texas El Paso.

July 19, 1989.

Rehearing Denied Aug. 16, 1989.

Sybil K. Colson, East Texas Legal Services, Paris, for appellant.

J. Brad McCampbell, Alexander & McCampbell, Emory, for appellees.

Before OSBORN, C.J., and WOODARD and KOEHLER, JJ.

OPINION

KOEHLER, Justice.

This is an appeal from an order in a final divorce decree awarding the managing conservatorship of a minor child to the paternal grandparents. Trial was to the court. We affirm in part and modify in part.

The Appellant, Brenda Kay Lewelling ("Brenda"), and Billy Ray Lewelling ("Bill"), were married on May 16, 1986. Brenda had a six-year-old daughter by a previous marriage and Bill also had children by a prior marriage for whom he was providing no support. They became parents of a child, Jesse James Lewelling ("Jesse"), born on April 1, 1987. The parties separated in August 1987 and Brenda filed for divorce on October 15, 1987. The paternal grandparents, Carl and Melba Lewelling ("Carl and Melba"), filed an intervention seeking to be named both temporary and permanent managing conservators of Jesse. Following a temporary orders hearing, the Texas Department of Human Services was appointed temporary managing conservator of Jesse, resulting in his physical possession being placed by DHS with Brenda during the pendency of the suit. Final hearing was held in March 1988, a number of witnesses testifying for Brenda and for Carl and Melba. At the conclusion of the trial, the court, after finding that "it would not be in the best interest of the child to appoint either of the parents as managing conservator ... [and] ... that the appointment of either of the parents would impair the child's physical health and emotional development[,]" appointed Carl and Melba managing conservators of Jesse. At the request of Brenda, the findings were subsequently formalized in Findings of Fact and Conclusions of Law found in the record.

In her first two points of error, Brenda asserts "insufficiency of the evidence" and "no evidence" to support the trial court's finding that the appointment of Brenda would significantly impair Jesse's physical health and emotional development. When reviewing a factual sufficiency point, we must consider all of the evidence in the record relevant to the fact being challenged and reverse on that point only if the fact found by the trial court is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

The Texas Family Code provides that a parent is to be appointed sole managing conservator of a child "unless the court finds that appointment of the parent ... would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." [Emphasis added.] Tex.Fam.Code Ann. sec. 14.01(b) (Vernon Supp.1989). The latter emphasized clause was added by the 70th Legislature, effective September 1, 1987. The natural right to maintain the parent/child relationship is one of constitutional proportions and should be disturbed only for the most compelling and serious reasons. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976); Neely v. Neely, 698 S.W.2d 758, 759 (Tex.App.--Austin 1985, no writ). The courts have always recognized the strong presumption that a child's best interest is usually served by keeping custody with the natural parents. Wiley v. Spratlan, 543 S.W.2d at 352. The party seeking to avoid the presumption's effects must first produce evidence to overcome it. Neely v. Neely, 698 S.W.2d at 759. When sufficient evidence contrary to the presumed fact is introduced, the presumption vanishes and the situation is the same as it would have been had no presumption existed. Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). Since the intervenors in this case had the burden to prove by a preponderance of the evidence that the appointment of Brenda would not be in the best interest of Jesse because the appointment would significantly impair the child's physical health or emotional development, Tex.Fam.Code Ann. sec. 11.15(a) (Vernon 1986), they had to do more than just rebut the presumption.

In the final divorce hearing, there was evidence Brenda had been physically abused by her husband during much of their marriage, and that he would take Jesse to his parents, Carl and Melba, when he and Brenda were fighting. According to Brenda, Carl and Melba were not only aware of the abuse but they had witnessed it on occasion. Carl and Melba admitted they had been told by Brenda about the abuse, had seen bruises on her, but denied seeing Bill hit her. Brenda testified that she had gone to the women's shelter on three occasions, once when she was pregnant with Jesse, and had been taken to the hospital for head injuries on one occasion. She testified that although she was scared and terrified of her husband, she would drop charges and go back to him after each occasion. On the last incident of violence that lead to their separation, Bill took Jesse against Brenda's will to his parents where the child remained for two months. During that period, she did not see Jesse but, according to her, did make one unsuccessful attempt to get help from the Department of Human Services and the sheriff. The testimony is conflicting as to whether she made any request to or demand on her mother-in-law to see Jesse. From the time he was born, Carl and Melba had physical possession of Jesse for a number of periods ranging from a week or so to two months.

Brenda admitted on cross-examination that remaining with her husband created a bad environment for her children. Despite her fear, she continued seeing Bill after their separation and during the pendency of the divorce, when he came to visit Jesse, and admitted to riding with Bill in his car and seeing him in public when there were people around. She testified that if Bill would get counseling, she might consider going back into the marriage with him. Brenda testified that she had been committed to Terrell State Hospital on two occasions, the first time on a voluntary commitment for two weeks "to see if there really was something wrong with me[,]" and most recently, by her father-in-law and husband "... without a hearing. They released me. They kept me twenty-four hours."

On the subject of environment and means of support, there was testimony that Brenda was currently living with her seventy-three-year-old mother, her sister, Imogene, and Imogene's twenty-year-old retarded son, Brenda's six-year-old daughter, Tiffany, and Jesse, in a three-bedroom house, owned by another sister, under "slightly" crowded conditions, and would continue to live there after the divorce. It appears that Brenda and Imogene did not get along well and on one occasion, Imogene made Brenda and her children leave for a couple of days. The health of the mother was variously described as very poor or healthy. Imogene was taking medication for her nerves. Brenda's only income was $158.00 per month AFDC, which she received for Tiffany, and WIC aid (baby cereal and formula, diapers and other items for the children). Brenda's mother was receiving social security payments as was Imogene for her retarded son. Brenda was neither employed nor trained for employment. Although she had been advised to seek job training, available at the courthouse or through the Texas Employment Commission,...