Martinez v. Molinar

Decision Date07 August 1997
Docket NumberNo. 08-96-00098-CV,08-96-00098-CV
Citation953 S.W.2d 399
PartiesRaymond S. MARTINEZ, Appellant, v. Yolanda MOLINAR, Appellee.
CourtTexas Court of Appeals

J. K. 'Rusty' Wall, Law Office of J. K. Rusty Wall, Midland, for Appellant.

Dan Morales, Attorney General, Rhonda A. Pressley, Assistant Attorney General, Child Support Litigation Division, Austin, Lilly A. Plummer, Odessa, for Appellee.

Before LARSEN, McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

This is an appeal from a judgment in a suit to establish the parent-child relationship in which orders for conservatorship and support were entered. We affirm the judgment as reformed.

PROCEDURAL HISTORY

In 1994, the Office of the Attorney General of Texas, Child Support Litigation Division, filed suit to establish the paternity of Sabrina Alexis Martinez, who was born in Midland, Texas on January 9, 1990. In his original answer, Raymond (Sam) Martinez, Appellant, denied paternity. Parentage testing established a 99.76 percent probability of his paternity. Martinez then amended his pleadings, admitted paternity, and filed a cross-petition seeking managing conservatorship of his daughter. Specifically, he sought sole managing conservatorship or, in the alternative, joint managing conservatorship with him having the right to establish the primary residence of the child.

Following a bench trial on November 1, 1995, the court appointed Yolanda Molinar, Appellee, sole managing conservator, entered a standard possession order and set child support. During a December 29 hearing on the form of the judgment to be entered, Martinez unsuccessfully sought to reopen the evidence as to the determination of child support. At issue, in this appeal, are the trial court's failure to file separate findings of fact and conclusions of law, its refusal to appoint the parents joint managing conservators, and its denial of the motion to reopen the evidence. The Office of the Attorney General, also a designated Appellee, brings a cross-point of error seeking reformation of the judgment to include a finding of paternity.

FAILURE TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW

In Point of Error No. One, Martinez argues that the judgment must be reversed because the trial court failed to issue separate written findings of fact and conclusions of law. We disagree. Martinez timely filed both an initial and reminder request for findings pursuant to TEX.R.CIV.P. 296 and 297. As a general rule, the failure of the trial court to file findings of fact constitutes error where the complaining party has complied with the requisite rules to preserve error. Wagner v. Riske, 142 Tex. 337, 342, 178 S.W.2d 117, 119 (1944); FDIC v. Morris 782 S.W.2d 521, 523 (Tex.App.--Dallas 1989, no writ). There is a presumption of harmful error unless the contrary appears on the face of the record. City of Los Fresnos v. Gonzalez, 830 S.W.2d 627 (Tex.App.--Corpus Christi 1992, no writ). Thus, the failure to make findings does not compel reversal if the record before the appellate court affirmatively demonstrates that the complaining party suffered no harm. Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex.1984). Where there is only one theory of recovery or defense pleaded or raised by the evidence, there is no demonstration of injury. Guzman v. Guzman, 827 S.W.2d 445 (Tex.App.--Corpus Christi 1992, writ denied); Vickery v. Texas Carpet Co., Inc., 792 S.W.2d 759 (Tex.App.--Houston [14th Dist.] 1990, writ denied). Accord, Landbase, Inc. v. T.E.C., 885 S.W.2d 499, 501-02 (Tex.App.--San Antonio 1994, writ denied) (failure to file findings and conclusions harmless where the basis for the court's ruling was apparent from the record).

The test for determining whether the complainant has suffered harm is whether the circumstances of the case would require an appellant to guess the reason or reasons that the judge has ruled against it. Sheldon Pollack Corp. v. Pioneer Concrete, 765 S.W.2d 843, 845 (Tex.App.--Dallas 1989, writ denied); Fraser v. Goldberg, 552 S.W.2d 592, 594 (Tex.Civ.App.--Beaumont 1977, writ ref'd n.r.e.). Any guessing game here is eliminated by inclusion of the court's findings as recitals in the judgment, as opposed to separate findings and conclusions. This is an acceptable practice under the rules since it serves the underlying purpose of Rule 296. Leon Ltd. v. Albuquerque Commons Partnership, 862 S.W.2d 693, 703 (Tex.App.--El Paso 1993, no writ), citing Farr v. Sun World Savings Ass'n, 810 S.W.2d 294, 298 (Tex.App.--El Paso 1991, no writ). The issue, then, is whether there are disputed facts to be resolved. FDIC v. Morris, 782 S.W.2d at 523.

We conclude that the order of the trial court contains findings that properly identify the basis of the court's ruling. Although recognizing that the 1995 amendments to the Texas Family Code 1 provide for a rebuttable presumption that joint managing conservatorship is in a child's best interest, the court specifically found that the presumption was rebutted "because such appointment of the biological parents as joint managing conservators would significantly impair Sabrina Alexis Martinez's physical health and emotional development." 2 Judging by Martinez's argument in Point of Error No. Two, he thoroughly understands the basis of the court's order, has not been required to guess the reason or reasons supporting the trial court's decision, and was not prevented from properly presenting his case on appeal. Point of Error No. One is overruled.

PRESUMPTION OF JOINT MANAGING CONSERVATORSHIP

In Point of Error No. Two, Martinez argues that the trial court erred by failing to appoint the parties as joint managing conservators of Sabrina. The Family Code recites that the public policy of this State is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; to provide a stable environment for the child; and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. TEX.FAM.CODE ANN. § 153.001(a)(Vernon 1996). The best interest of the child shall always be the primary consideration of the court in determining conservatorship and possession. TEX.FAM.CODE ANN. § 153.002 (Vernon 1996). The trial court shall consider the qualifications of the parties without regard to their marital status or to the gender of the party or the child in determining which party to appoint as sole managing conservator, whether to appoint joint managing conservators, and the terms and conditions of conservatorship. TEX.FAM.CODE ANN. § 153.003 (Vernon 1996). The trial court may appoint a sole managing conservator or joint managing conservators. TEX.FAM.CODE ANN. § 153.005(a)(Vernon 1996). Section 153.131(b) creates a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. TEX.FAM.CODE ANN. § 153.131(b) (Vernon 1996). However, in determining whether joint managing conservatorship is in the best interest of the child, the court is to consider the following factors:

whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;

the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;

whether each parent can encourage and accept a positive relationship between the child and the other parent;

whether both parents participated in child rearing before the filing of the suit;

the geographical proximity of the parents' residences;

if the child is 12 years of age or older, the child's preference, if any, regarding the appointment of joint managing conservators; and

any other relevant factor.

TEX.FAM.CODE ANN. § 153.134 (Vernon 1996).

The record reveals that the parties could not agree on marriage or commitment, whether Martinez was Sabrina's father, the amount of child support, the visitation schedule, the needs of the child, or the need for a civil relationship for the child's sake. The evidence also shows that neither party could encourage and accept a positive relationship between the child and the other parent. Evidently, Martinez harbored some belief that he and Molinar could not cooperate or work together for Sabrina's benefit since he sought to be appointed sole managing conservator. Joint managing conservatorship was an alternative and secondary request.

At trial, Martinez claimed that early on, he did not know whether he was Sabrina's father, yet the record reflects that he did not object to her name being stated as "Martinez" on the birth certificate. He also participated in Sabrina's baptism, announced himself as her father during the ceremony, and signed the baptismal records. 3 The couple separated when Sabrina was six months' old. Molinar testified that a paternity action filed in 1992 was dismissed because Martinez threatened a custody suit. 4 When she asked him if he had been served in connection with the 1994 suit, Martinez "threatened me to file for custody and told me that he was going to take her, that he was never going to give me a penny." Indeed, Martinez did not deny his efforts to avoid paying support. Even after the parentage testing established his paternity in November of 1994, Martinez paid no support in November or December of 1994 or January of 1995. An order entered in February 1995 set child support and provided for wage withholding, but despite the fact that Martinez recognized that the support was not yet being withheld, he paid no support in February, March, or April of 1995. Instead of paying the arrearage to Molinar, he deposited the money into his attorney's trust account until the conclusion of the trial. Further, when asked why he paid a few medical care providers directly rather than giving money directly to Molinar,...

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