M.R., In Interest of, 04-97-00846-CV

• Decision Date: 22 April 1998
• Docket Number: No. 04-97-00846-CV,04-97-00846-CV
• Citation: 975 S.W.2d 51
• Parties: In the Interest of M.R., A Minor Child.
• Court: Texas Court of Appeals

Page 51

975 S.W.2d 51

In the Interest of M.R., A Minor Child.

No. 04-97-00846-CV.

Court of Appeals of Texas,

San Antonio.

April 22, 1998.

Rehearing Overruled May 8, 1998.

Kevin L. Collins, William T. Reece, Jr., Reece & Collins, San Antonio, for Appellant.

Barbara C. Slavin, San Antonio, Amber M. Liddell, Edward L. Pina & Associates, San Antonio, for Appellee.

Before HARDBERGER, C.J., and LOPEZ and GREEN, JJ.

OPINION

HARDBERGER, Chief Justice.

INTRODUCTION

This is an appeal from an order changing the managing conservatorship of M.R. from his mother, Karen, to his father, Joe. Karen asserts that the trial court abused its discretion in refusing to consider evidence of Joe's violence against Karen. We agree.

FACTUAL HISTORY AND PROCEDURAL BACKGROUND

In 1994, Karen gave birth to a baby boy. Several months later, Joe, who was not married to Karen, was adjudicated the child's father and ordered to pay child support. Karen was given managing conservatorship of the child, and Joe was awarded limited, supervised visitation.

Joe and Karen's relationship was not a smooth one. In 1997, after an especially bad incident with Karen, Joe requested that the custody of the child be modified and that he be named sole managing conservator. At trial, Karen attempted several times to introduce evidence that Joe had had recurring problems with alcohol and that he had committed violent acts against Karen in the two years preceding the suit. In particular, Karen attempted to introduce evidence of a March 1996 incident that resulted in assault charges being filed against Joe. The trial court refused to hear this evidence. ¹

After a two-day trial, the court below granted Joe's request to modify custody. ² The modified order gave Joe sole managing conservatorship and limited Karen to supervised visits and phone visitation. The trial court also ordered Karen to pay child support. Karen appeals the order in one point of error, claiming that the trial court abused its discretion in refusing to consider Joe's acts of violence against her in determining what was in their son's best interest.

STANDARD OF REVIEW

In reviewing a custody modification proceeding, an appellate court may not reverse a decision of the trial judge unless there has been a clear abuse of that judge's discretion. An abuse of discretion occurs when the trial court's actions were arbitrary and unreasonable and without reference to any guiding rules or principles of law. Villasenor v. Villasenor, 911 S.W.2d 411, 419 (Tex.App.--San Antonio 1995, no writ).

DISCUSSION

In making child custody determinations, the trial court is to be guided primarily by what is in the child's best interest. TEX. FAM.CODE ANN. art. 153.002 (Vernon 1996). A change in custody should be ordered only when the trier of fact is "convinced that the change will effect a positive improvement for the child." Hogge v. Kimbrow, 631 S.W.2d 603, 605 (Tex.App.--Beaumont 1982, no writ). To aid a trial court in determining the proper placement for a child, the Family Code mandates that any evidence of intentional use of violence by a "party against the party's spouse" be admitted if it was committed within the two years preceding the filing of the custody suit or during the suit. TEX. FAM.CODE ANN. art. 153.004(a) (Vernon 1996). Karen claims that the trial court violated this mandate when it refused to consider evidence of the March 1996 assault.

Joe claims, alternatively, that error was not preserved, that article 153.004(a) does not apply, that the excluded evidence was prohibited by the rules of evidence, or that the trial judge, in fact, did consider the evidence. We disagree with each contention.

Joe claims that error was not properly preserved for review. He claims that, during the intervenors' closing arguments, the intervenors' attorney objected to the exclusion of the evidence under the wrong statute, Family Code art. 151.001. We find no merit to this contention. In the first place, the intervenors are not appealing, and what error they preserved is not relevant to this case. ³ In the second place, Karen's attorney objected when the trial court first ruled the evidence was inadmissible and each and every time thereafter that such a ruling was made. His objections are clear and repeatedly state that he was entitled to show a history of the relationship and that the violence was not "one-sided." His objections sufficiently preserve error for our consideration. See TEX.R. CIV. EVID. 103(a)(1) (specific ground for objection may be clear from record).

Next, Joe asserts that article 153.004(a) does not mandate admission of evidence of violence because that provision applies only to violence committed by one spouse against another. Joe and Karen were never married. We agree that this claim is supported by the plain language of subsection (a) of this provision, which states In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party's spouse or against any person younger than 18 years of age committed within a two-year period preceding the filing of the suit during the pendency of suit.

TEX. FAM.CODE ANN. art. 153.004(a) (Vernon 1996). However, we believe that the statute, when construed as a whole and with the rest of the family code, cannot be interpreted so narrowly. See Porter v. State, 806 S.W.2d 316, 319 (Tex.App.--San Antonio 1991, no writ) (court is to give rational construction to statute and enforce legislative intent, even if intent is not completely consistent with language of statute).

Article 153.004 is entitled "History of Domestic Violence." The title of the article does not limit the statute to cases of spousal abuse. While we recognize that the title is not controlling in statutory interpretation, we do find it instructive. Subsection (a), which mandates admission of violence against a spouse, applies to determinations of both sole and joint managing conservatorships. Subsection (b) of the statute applies to determinations of joint managing conservators, and it states that the court may not appoint joint managing conservators if "credible evidence" is presented of a history of child neglect or by "one parent directed against the other parent." Id. at 153.004(b). Subsection (b) is not limited to spousal abuse.

It would obviously be impossible to apply subsection (b) if evidence of domestic violence committed by one unmarried parent against another unmarried parent were inadmissible. It also makes no sense to find that admission of such evidence is discretionary, since the subsection states that a court "may not" appoint joint managing conservators when such evidence is presented. If a trial judge exercised her hypothetical discretion in excluding credible evidence, would she not commit error if she then appointed joint managing conservators?

Subsection (c) of the statute controls decisions of whether to limit possession of a child by a parent who is appointed as a possessory conservator. In making this determination, the statute mandates that the court consider evidence of the commission of "family violence." Again, the evidence is not limited to cases of spousal abuse.

We can think of no reason why the state legislature would believe it appropriate to exclude evidence of abuse between unmarried parents when determining who is to be a child's sole managing conservator, but allow evidence of such abuse when determining whether to appoint joint managing conservators or whether to limit the access of a possessory conservator. Since the ultimate question in each instance is who is to have possession of the child, the same evidence would always be relevant.

Nor can we arrive at any principled justification for distinguishing between the children of unmarried parents and the children of married parents in determining what is in those children's best interest. Indeed, such a distinction would almost certainly violate the state and federal constitutional mandates of equal protection. See U.S. CONST. amend. XIV; Tex. Const. art. I, § 3; see also Barshop v. Medina Underground Water Cons. Dist., 925 S.W.2d 618, 629 (Tex.1996) (when possible, statutes should be interpreted to avoid constitutional infirmities). Laws that classify illegitimate children receive intermediate scrutiny: they must meet an important state interest. See Dickson v. Simpson, 807 S.W.2d 726, 727 (Tex.1991) (statutory classifications based on legitimacy are suspect and must be substantially related to important governmental interest). We can think of no state interest that is advanced by giving the children of married parents the opportunity for a safer home environment than the children of unmarried parents.

The provisions of the statute must, if possible, be harmonized. See City of Amarillo v. Railroad Com'n of Texas, 894 S.W.2d 491, 494 (Tex.App.--Austin 1995, writ denied) (courts will not give one provision meaning that conflicts with other provisions). In addition, the statute cannot be construed so as to lead to absurd results. Barshop, 925 S.W.2d at 629. Because the statute is found in a chapter of the code that seeks to determine what is in a child's best interest (not just some children's best interest), and because the provisions, taken together, evidence a legislative mandate that domestic violence, generally, be a consideration in custody determinations, we hold that subsection (a) requires that evidence of violence committed by one of the child's parents against the other parent be admitted.

Joe next submits that the excluded evidence was prohibited by Texas Rule of Evidence 609. That rule provides:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record but only if the crime was a felony or involved moral turpitude, regardless of...