Lide v. Lide

• Citation: 116 S.W.3d 147
• Decision Date: 26 June 2003
• Docket Number: No. 08-01-00378-CV.,08-01-00378-CV.
• Parties: Henry Samuel LIDE, III, Appellant, v. Deborah Ella LIDE, Appellee.
• Court: Texas Court of Appeals

116 S.W.3d 147

Henry Samuel LIDE, III, Appellant, v. Deborah Ella LIDE, Appellee.

No. 08-01-00378-CV.

Court of Appeals of Texas, El Paso.

June 26, 2003.

Roy L. Bell, Law Offices of Roy Bell, Odessa, for Appellant.

C.H. Hal Brockett, Jr., Brockett & Lindemood, Midland, for Appellee.

Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

In this appeal from a final decree of divorce, Henry Samuel Lide, III challenges the appointment of Deborah Lide as the sole managing conservator of the parties' four children. He also complains of the child support order which deviates from the statutory guidelines. We affirm.

FACTUAL SUMMARY

Henry Lide and Deborah Bloxom were married in August 1981, separated in October 1999, and filed for divorce in July 2000. During the pendency of the divorce, the parties entered into an agreed temporary joint managing conservatorship of their four children, who resided with Deborah in the family home in Andrews. Henry relocated to Odessa, some twenty-five miles away. Pursuant to the temporary orders, Henry paid alimony pendente lite and child support of $5,000 per month.

Henry is a doctor of veterinary medicine and his private practice generated the bulk of the family income. The trial court found that his average monthly income for the years 1998 and 1999 was $7,333.64 and his monthly net resources for that period were $4,754.80. Henry does not challenge these findings on appeal. At the time of trial, Henry was practicing at the University Small Animal Clinic in Odessa. He believed the clinic had a fair market value of $450,000 and he had a pending sales contract at that price, which included the land, the building, the inventory, and a covenant not to compete. Although the contract had not been signed, Henry testified that he intended to accept it and that closing was scheduled within thirty days. Pursuant to the contract, Henry would receive a cash down payment of $250,000 and a promissory note in the amount of $200,000, payable over a ten year period.

During the marriage, Deborah was a homemaker. She received monthly oil royalties on inherited mineral interests which varied between $2,500 and $5,000 per month. She leased the surface for ranching and hunting for roughly $3000 per year. Deborah also trained and sold horses, maintaining her business on the twenty-five acres surrounding the family home. The business was not revenue producing and operated at a loss every year. But the horses were important to the children and rodeo events became a primary activity as they participated in barrel racing, roping and goat tying, ribbon roping, cow catching, and break away roping.

The record reveals that at some point, Deborah's mother and grandmother established custodial accounts to fund the children's college education. Both Henry and Deborah were signatories on the accounts. During the parties' separation, Deborah discovered that Henry had withdrawn some $80,000 from the accounts without her knowledge or permission. Henry testified that he spent the money to keep his business operating, to pay delinquent federal income taxes, and to pay for some of the activities in which the children were involved.

At trial, Deborah requested that she be appointed sole managing conservator and that Henry be ordered to pay $3,000 per month in child support. The trial court set child support at $2,500. This appeal follows.

FAILURE TO FILE FINDINGS OF FACT AND CONCLUSIONS OF LAW

In Issue One, Henry complains that the trial court failed to make findings of fact and conclusions of law despite a timely request. Tex.Fam.Code Ann. § 154.130(a)(3)(Vernon 2002). The trial court is required to make findings if the amount of child support awarded varies from the amount computed by application of the statutory guidelines. Tex.Fam.Code Ann. § 154.130(a)(3). We abated the appeal and directed the trial court to make the necessary findings. The record has been duly supplemented and the parties have had the opportunity to re-brief. Henry candidly concedes that the first issue is now moot. Accordingly, we overrule Issue One.

In Issues Two, Three, Four, and Five, Henry argues that there was legally or factually insufficient evidence to support Deborah's appointment as the sole managing conservator or to support the order of child support in excess of the presumptive guidelines. He also contends that the court's findings were so arbitrary and unreasonable as to constitute an abuse of discretion. In this case, as in most family law cases, these two standards of review overlap.

STANDARDS OF 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. In the Interest of De La Pena, 999 S.W.2d 521, 532 (Tex.App.-El Paso 1999, no pet.). When reviewing the legal sufficiency of the evidence, we consider only the evidence and inferences tending to support the trial court's finding, disregarding all contrary evidence and inferences. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). "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. Bates v. Tesar, 81 S.W.3d 411, 425 (Tex.App.-El Paso 2002, no pet). 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 an issue 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. See Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex. App.-El Paso 1981, no writ).

Most orders arising from a suit affecting the parent/child relationship will not be disturbed on appeal unless the complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Hodson v. Reiser, 81 S.W.3d 363, 367 (Tex.App.-El Paso 2002, no pet.). We engage in a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion, and (2) did the trial court err in its application of discretion? Hodson, 81 S.W.3d at 367; Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.). The traditional sufficiency inquiry applies to the first question. Id. Once we have determined whether sufficient evidence exists, we must then decide whether the trial court made a reasonable decision. In other words, we must conclude that the ruling was neither arbitrary nor unreasonable. Hodson, 81 S.W.3d at 367.

The term "abuse of discretion" is not susceptible to rigid definition. Hodson, 81 S.W.3d at 368; Lindsey, 965 S.W.2d at 591; Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934 (Tex. App.-Austin 1987, no writ). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but whether the court acted without reference to any guiding rules and principles. Hodson, 81 S.W.3d at 368; 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), citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.Com.App. 1939, opinion adopted). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Hodson, 81 S.W.3d at 368; Smithson v. Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex. 1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959). 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. See In the Interest of Gonzalez, 993 S.W.2d 147, 155 (Tex.App.-San Antonio 1999, no pet.); D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex.App.-Fort Worth 1995, writ denied).

SOLE MANAGING CONSERVATORSHIP

In Issues Two and Three, Henry claims the trial court abused its discretion in appointing Deborah as sole managing conservator of the children because (1) the evidence was factually and legally insufficient to support that order and (2) the evidence did not overcome the statutory presumption that joint managing conservatorship would be in the best interest of the children.

It is the public policy of this state to assure that children have frequent and continuing contact with parents who have shown the ability to act in their best interest, and to encourage parents to share in the rights and duties of raising their children after the parents have separated or dissolved their marriage. See Tex.Fam. Code Ann. § 153.001; Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex.App.-El Paso 2002, no pet.). The best interest of the child is always the primary consideration of the court in determining issues of conservatorship. See Tex.Fam.Code Ann. § 153.002; Doncer, 81 S.W.3d at 353. There is a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of a child. Tex.Fam.Code Ann. § 153.131(b). A rebuttable presumption "shift[s] the burden of producing evidence to the party against whom it operates." In the Interest of Rodriguez, 940 S.W.2d 265, 271 (Tex. App.-San Antonio 1997, writ denied), citing General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex.1993). Once that burden...