Lewelling v. Lewelling, No. C-9104

• Court: Supreme Court of Texas
• Writing for the Court: DOGGETT; Concurring opinion by COOK; Dissenting opinion by GONZALEZ; Dissenting opinion by HECHT, J., joined by SPEARS; COOK; GONZALEZ; HECHT; SPEARS
• Citation: 796 S.W.2d 164
• Parties: Brenda LEWELLING, Petitioner, v. Carl and Melba LEWELLING, Respondents.
• Docket Number: No. C-9104
• Decision Date: 19 September 1990

Page 164

796 S.W.2d 164 Brenda LEWELLING, Petitioner,
v.
Carl and Melba LEWELLING, Respondents. No. C-9104. Supreme Court of Texas. Sept. 19, 1990.
Rehearing Overruled Oct. 10, 1990.

Page 165

Sybil K. Colson, Paris, for petitioner.

J. Brad McCampbell, Emory, for respondents.

OPINION

DOGGETT, Justice.

At issue in this cause is the standard to be applied when a nonparent seeks appointment as managing conservator of a minor child. The applicable provision of the Family Code requires the nonparent to show that awarding custody to the natural parent "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. § 14.01(b) (Vernon Supp.1990). The court of appeals, while properly articulating this standard, failed to apply it correctly and, in so doing, improperly relied upon evidence of abuse of a mother by her spouse to deny her appointment as managing conservator of her child. 774 S.W.2d 801, 803 (1989). We, therefore, reverse the court of appeals' judgment and remand the cause to the trial court with instructions for rendition of judgment in accordance with this opinion.

Brenda Lewelling initiated a divorce from her husband Billy Lewelling and sought appointment as managing conservator of their son Jesse. She alleged that Billy had physically abused her throughout their relationship. Although Billy did not seek custody of the child, his parents, Carl and Melba Lewelling, intervened in the divorce proceeding to be named managing conservators. At the hearing on temporary custody, Brenda testified that Billy had often beaten her during their marriage, that she had been hospitalized on several occasions as a result, once with a concussion from a blow to the head, and that this physical abuse continued during the time she was pregnant with Jesse. The trial court awarded temporary custody to the Department of Human Services (DHS) with the right of placement. DHS opted to place the child with Brenda pending the outcome of the suit.

The trial court ordered DHS to investigate both Brenda and the Lewellings. At the final custody hearing, the social worker who visited Brenda recommended that Jesse be placed with her. The social worker who investigated Carl and Melba suggested that Jesse reside with them. During the proceedings, Brenda's allegation of physical abuse was bolstered by the testimony of Melba, as well as Billy's brother. There was no evidence to indicate that the child had been physically abused.

At the close of the hearing, the trial court ordered that Carl and Melba be named as managing conservators of Jesse. Brenda and Billy were named as possessory conservators. Although not referencing any specific evidence, the trial court concluded that naming Brenda as managing conservator would significantly impair Jesse's physical health and emotional development. The court of appeals affirmed the appointment of Carl and Melba as managing conservators based on the following evidence: 1) Brenda continued to see Billy after several incidents of physical abuse and testified that she might consider a reconciliation if he sought counseling; 2) Brenda continued to see Billy during the pendency of the divorce when he came to visit Jesse; 3) Brenda did not see Jesse for a period of approximately two months after Billy beat her and took Jesse to the grandparents' house; 4) Brenda was unemployed, had little money, and lived in a small house with her mother and other family members; and 5) Brenda had twice

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been a patient at Terrell State Hospital. 774 S.W.2d 801, 803-804.

Brenda has presented a properly preserved "no evidence" point of error to this court. When reviewing such a challenge, we must consider only the evidence and reasonable inferences drawn therefrom which, when viewed in their most favorable light, support the court's finding, disregarding all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In the instant case, we must determine whether more than a scintilla of evidence exists to support the trial court's finding that appointing Brenda as managing conservator would significantly impair Jesse's physical or emotional well being. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). If no evidence exists, we must sustain Brenda's point of error and reverse the judgment.

The presumption that the best interest of a child is served by awarding custody to a natural parent is deeply embedded in Texas law. ¹ The Legislature, in enacting section 14.01(b), codified that presumption by defining the procedure for appointment of a nonparent as managing conservator. Prior to 1987, that statute provided in relevant part:

§ 14.01. Court Appointment of Managing Conservator

(b) A parent shall be appointed managing conservator of the child unless the court finds that appointment of the parent would not be in the best interest of the child.

Tex.Fam.Code Ann. § 14.01(b) (Vernon 1986). Although the parental preference was clear, the strength of that presumption was not. ²

In 1987, however, the legislature made clear the paramount importance of the parental presumption by amending the statute to provide:

(b) A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless:

(1) the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development;

Tex.Fam.Code Ann. § 14.01(b) (Vernon Supp.1990) (emphasis supplied). While there is apparently no legislative history relevant to its intended effect, this amendment was viewed as a significant change greatly strengthening the parental presumption:

Thus, while there might be a lot of reasons appointment of a parent would not be in the best interest of the child, only one suffices to rebut the parental preference. This means that the fact that another contesting third party, for example, a grandparent, would be a better custodian of a child is not sufficient to rebut the parental presumption absent this impairment of physical health or emotional development.

89-1 State Bar Section Report--Family Law 27 (J. Sampson ed. 1989) (emphasis supplied). ³

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The amendatory language requiring a showing that appointment of the parent would significantly impair the child's physical or emotional development creates a strong presumption in favor of parental custody and imposes a heavy burden on a nonparent. It is no longer adequate to offer evidence that the nonparent would be a better custodian of the child. See Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex.1963); see also Neely v. Neely, 698 S.W.2d 758, 760 (Tex.App.--Austin 1985, no writ). Under section 14.01 as amended, the nonparent must affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally. This statute thus requires the nonparent to offer evidence of specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child.

Since there is no evidence in the record to show that appointment of Brenda as managing conservator would significantly impair Jesse's physical health or emotional development, the court of appeals erred in affirming the trial court's award of permanent custody of the child to the grandparents. See Mumma, 364 S.W.2d at 221. The fact that Brenda was unemployed at the time of the custody hearing and living in somewhat crowded conditions is no evidence of significant impairment to the child. ⁴ The visits to Terrell State Hospital constitute no evidence that placement with Brenda would emotionally impair the child. Her testimony that she was released on the initial visit after being told she "didn't need to be down there" is uncontradicted in the record. Similarly, her uncontested testimony established that the second and last visit, initiated by her husband and father-in-law, resulted in her release by the hospital within twenty-four hours because she had no mental problems. ⁵

Most importantly, the court of appeals seems to place great weight on the evidence relating to the alleged physical abuse of Brenda, ⁶ without any evidence that such abuse would significantly impair Jesse's physical health or emotional development. A parent should not be denied custody of a child based on the fact that he or she has been battered. We hold that evidence that a parent is a victim of spousal abuse, by itself, is no evidence that awarding custody to that parent would significantly impair the child. Any other result is contrary to the public policy of our State.

Page 168

Our decision today is consistent with recent legislative changes addressing the problem of family violence. As part of the 1987 amendments to section 14.01, the Legislature added a provision specifically targeting the problem of family violence. Section 14.01(c)(2), which sets forth the factors to consider when the natural mother and father are both seeking custody, states that evidence of abusive physical force by a parent against his or her spouse or a child shall be considered by the court in deciding custody. The provision creates a preference that the non-violent parent, rather than the violent parent, be appointed managing conservator. ⁷ Thus, in a custody dispute between two parents, section 14.01(c)(2) allows evidence of spousal abuse to be considered only as a factor that weighs heavily against the abusive parent; such evidence does not weigh against the abused. As the abuser cannot take advantage of his acts of abuse in a custody battle with the abused, so the abuser's parents also may not benefit from that abuse. While...