Lilley v. Lilley

• Decision Date: 12 April 2001
• Citation: 2001 WL 359607,43 S.W.3d 703
• Parties: (Tex.App.-Austin 2001) Wendy Kalinec Lilley, Appellant v. William Rayford Lilley, Appellee NO. 03-00-00284-CV
• Court: Texas Court of Appeals

Page 703

43 S.W.3d 703 (Tex.App.-Austin 2001)

Wendy Kalinec Lilley, Appellant v. William Rayford Lilley, Appellee

NO. 03-00-00284-CV

COURT OF APPEALS OF TEXAS, AUSTIN.

April 12, 2001.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. 98-02448, HONORABLE CHARLES F. CAMPBELL, JUDGE PRESIDING.

Before Chief Justice Aboussie, Justices B.A. Smith and Patterson.

Bea Ann Smith, Justice.

The district court signed an order granting appellee William Rayford Lilley ("Ray") scheduled visitation with his granddaughter, who is the daughter of appellant Wendy Lilley. Wendy appeals from the final visitation order, attacking the factual sufficiency of the evidence supporting the order and contending the order violates her due process rights under the United States Constitution. We will affirm.

Factual Background

Wendy was married to Clay Lilley and they had a daughter, S.M.L., born on May 15, 1997. In February 1998, while Clay and Wendy were seeking a divorce, Clay committed suicide. Ray is Clay's father and S.M.L.'s paternal grandfather. Ray initially blamed Wendy for Clay's suicide. Two months after Clay's death, Ray filed a petition requesting "reasonable access" to his granddaughter. A pretrial hearing was held in June 1998, and an associate judge signed temporary orders allowing Ray supervised visits with S.M.L. on the first and third Saturdays of each month until S.M.L.'s second birthday and unsupervised visits after her second birthday, conditioned on Ray's seeking grief or anger-management counseling.

During the summer of 1998, Ray sought counseling, and trial testimony indicates he and Wendy worked out a visitation schedule that greatly exceeded the terms of the temporary orders. A final hearing was held on January 5, 2000, and the district court granted Ray possession of S.M.L. one weekend each month, one week in the summer, two days between Christmas and New Year's Day, and every other Father's Day. The district court found it would be in S.M.L.'s best interest for Ray to have access to her. Wendy appeals, arguing the visitation order is against the great weight and preponderance of the evidence and violates her due process rights.

Discussion

Under certain circumstances, a grandparent may petition a trial court for access to a grandchild. Tex. Fam. Code Ann. § 153.433 (West Supp. 2001). Section 153.433 provides that a trial court shall allow the grandparent reasonable access to the grandchild if such access is in the best interest of the grandchild and the grandparent's child is a parent of the grandchild and is deceased. Id. § 153.433(2)(A).

A trial court has wide discretion in determining the best interest of a child in family law matters such as custody, visitation, and possession. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); G.K. v. K.A., 936 S.W.2d 70, 72 (Tex. App. Austin 1996, writ denied); see Dennis v. Smith, 962 S.W.2d 67, 68 (Tex. App. Houston [1st Dist.] 1997, pet. denied). We will reverse a trial court's order only if it appears from the entire record that the trial court abused its discretion, meaning it acted unreasonably, arbitrarily, or without reference to any guiding principles. G.K., 936 S.W.2d at 72. There is no abuse of discretion if the decision is supported by sufficient, competent evidence. Gillespie, 644 S.W.2d at 451; Dennis, 962 S.W.2d at 68. That a trial court decides an issue differently than would an appellate court does not demonstrate an abuse of discretion; often a trial court is in a better position to evaluate evidence and the child's best interest. Wright v. Wright, 867 S.W.2d 807, 816 (Tex. App. El Paso 1993, writ denied). The trial court, as fact-finder, resolves conflicts in the evidence and determines the weight and credibility to give to witness testimony. Schneider v. Schneider, 5 S.W.3d 925, 931 (Tex. App. Austin 1999, no pet.). A fact-finder's decision on conflicts in the evidence is generally viewed as conclusive. Id.

In her first issue on appeal, Wendy contends that the district court's order was against the great weight and preponderance of the evidence and thus manifestly unjust. She argues that giving Ray grandparent access is not in S.M.L.'s best interest because Ray is unfit to be in a position of authority over S.M.L. and because of the animosity that has developed between Ray and Wendy.

Ray lives in Houston; Wendy and S.M.L. live in Austin. Ray is fifty years old, in good health, and married to his third wife. He has one living child, a daughter, and three stepchildren. Ray said he had assisted Wendy financially and helped pay for S.M.L.'s day care. He testified he received funds from a life insurance policy he owned insuring Clay's life and established a trust fund with those proceeds; when he dies, S.M.L. will have access to the fund monies. Ray said he thought taking S.M.L. to Houston on weekends was in her best interest because it allowed her to see her father's family; he thought it also gave Wendy a break and allowed her to get things done. When S.M.L. visits, Ray brings her to visit his elderly mother in Cleveland or other family members. Ray's daughter sees S.M.L. "[w]henever [Ray] has her," and has only seen her niece three or four times outside Ray's presence. Ray's mother, S.M.L.'s great-grandmother, has seen S.M.L. four times, always during Ray's visits.

At the pretrial hearing, Ray admitted that he blamed Wendy and himself for Clay's suicide. He also admitted that he left the following message on Wendy's answering machine in December 1997, while she and Clay were divorcing:

I've left two messages. So if you can return my call like you said you was going to do but don't think you want me to come to Austin. I'm not on these restraining orders and if you deny this baby the right to see his father during Christmas, me and you got a problem. You're going to have to deal with me. That's not a terroristic threat, that's a promise.

Ray said, "Yes, sir, I said that. I don't think he's dealing with it now because my son is now deceased and I knew that's what was going to happen."

At the final hearing, Ray testified he had gone to counseling and was no longer angry at Wendy over his son's death. Asked about the counseling, Ray said, "I don't know if you're calling that anger management course what the psychologist gave me or not, you'll have to ask the psychologist. I have no anger. So I think I've come a long ways from the first day we were in court, and I'm not angry at anyone." He said he saw the psychologist a number of times in the summer of 1998 and had gone back once since then. At the final hearing, he testified that in the year and a half since the pretrial hearing, he and Wendy had been cooperating and getting along fine.

When asked why he filed his petition less than a month after his son's death, Ray said he thought "everything was beautiful," and "[a]ll [he] wanted was something that was in writing from the Court so there would be something in writing, concrete." Ray was asked whether he had threatened to take Wendy to court if she did not cooperate with him. He responded,

That was in the very beginning, sir, you're taking this way out of context . . . . We were just trying to get some stuff written in court papers so that it was legal so that if anything ever happened in the future, she got married or we got to where we wasn't getting along, we would have something concrete as far as visitation. . . . And I'm sorry, maybe I should have brought my wife and family because I thought me and Wendy were getting along fine.

Ray said his relationship with his daughter was "fine," he got along well with Clay before his death, and he had "great" relationships with his stepsons. Ray denied there was any family violence in his first marriage and admitted there was some violence in his second marriage. He said Child Protective Services was called to his house once about eight years earlier because his daughter spit in his face and he hit her. He denied mentally abusing his second wife, but said she would probably say he had abused her. He said he physically abused his daughter once or twice, and physically abused Clay once.

Wendy testified about an incident that occurred after she and Clay decided to divorce and Clay had moved out of their house. Clay and Ray came to the house together and threatened to kick the door down. Wendy moved to Austin after Clay moved out because she was scared of Ray and Clay. Wendy testified that "[t]he divorce got very nasty," Clay threatened to kill her, and she got a restraining order against him. She said Clay had very little contact with S.M.L. from late November 1997 until his death in February 1998. Immediately after Clay's suicide, Ray told Wendy the suicide was her fault.

Wendy said Ray intimidated her into agreeing to visits by telling her he had the financial means to fight her in court and she did not. She said Ray had made what she believed were veiled threats to kidnap S.M.L. when he told her his passport and visa were current. She said when she disagrees with Ray while they are trying to arrange visitation, he tells her he will take her to court, which she cannot afford. She testified that she had never denied Ray visits with S.M.L. and did not intend to do so.

Wendy said Ray offered to help her financially if she agreed to his visitation demands. He offered to pay off her and Clay's tax debt, give her a car, pay her credit card debts, and establish a college trust for S.M.L. When they could not work out a visitation agreement, he revoked his offers and told Wendy that "he has a [trust] fund set up in his name. It doesn't have [S.M.L.'s] name on it because that would give me rights as her mother and he'll make sure I never see a penny of it."

At the hearing on temporary orders, Wendy was asked, "You generally think it's in the best interest of [S.M.L] that she develop a relationship with her grandfather?" She answered, "I would like yes, I would like for...