Niskar v. Niskar

• Decision Date: 15 June 2004
• Docket Number: No. 05-03-00988-CV.,05-03-00988-CV.
• Parties: Michael A. NISKAR, Appellant, v. April S. NISKAR, Appellee.
• Court: Texas Court of Appeals

136 S.W.3d 749

Michael A. NISKAR, Appellant, v. April S. NISKAR, Appellee.

No. 05-03-00988-CV.

Court of Appeals of Texas, Dallas.

June 15, 2004.

Myrna B. Silver, Attorney At Law, Dallas, TX, for Appellant.

April S. Niskar, Irving, TX, pro se.

Before Justices WHITTINGTON, LANG, and LANG-MIERS.

OPINION

Opinion by Justice LANG.

Michael A. Niskar appeals the Final Decree of Divorce that dissolved his marriage with April S. Niskar. The appellant brings five issues on appeal: (1) that the terms of the Final Decree of Divorce regarding possession of and access to the child with respect to his work schedule and illness of the child are not specific enough to be enforced by contempt proceedings; (2) that the evidence does not support the restriction by the trial court with respect to his possession of and access to the child, denying him overnight possession of the child for at least two years; (3) that the trial court deviated from the statutory guidelines when ordering the amount of child support, even though it explicitly stated that it was ordering support according to the guidelines; (4) that the divorce decree recites that he must maintain a life insurance policy, but the trial record is silent on this subject; and (5) that he was not afforded a hearing on his Appeal from the Report of the Associate Judge. The trial court's Final Decree of Divorce is affirmed, in part; affirmed as modified, in part; and reversed and rendered, in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 22, 2002, April Niskar filed her Original Petition for Divorce in the 256th Judicial District Court, Dallas County, Texas and the trial court issued a Temporary Restraining Order and Order Setting Hearing for Temporary Orders. On August 1, 2002, the Associate Judge of the 256th District Court held a hearing on April Niskar's request for temporary orders. At the hearing before the Associate Judge, April Niskar was represented by counsel and the appellant appeared pro se. Because the parties actually resided in Collin County, the Associate Judge abated the Petition for Divorce, but determined that Dallas County did have jurisdiction over the suit affecting the parent-child relationship. The Associate Judge recommended that: (1) the trial court appoint the parents as joint temporary managing conservators; (2) the child's primary physical residence be with April Niskar, but restricted to Dallas and its contiguous counties; (3) the appellant has access to and possession of the child on Tuesdays and Thursdays from 2:00 p.m. until 5:00 p.m.; (4) the appellant pay $1,000.00 per month in temporary child support with the first payment due on August 2, 2002; and (5) the appellant maintains health insurance coverage on the child and be responsible for seventy-five percent of the noncovered health expenses. On August 5 2002, the appellant filed his appeal of the Associate Judge's Report. On August 6, 2002, the 256th Judicial District Court entered Temporary Orders based upon the Associate Judge's report.

Meanwhile, on August 2, 2002, April Niskar filed her Original Petition for Divorce in the 380th Judicial District Court, Collin County, Texas, which issued a Temporary Restraining Order with respect to persons and property. The appellant, through counsel, filed his original Answer and general denial on August 12, 2003. The parties filed an Agreed Motion to Transfer Venue of the Suit Affecting the Parent-Child Relationship on August 15, 2002, and an agreed order was signed by the 256th Judicial District Court on the same day.

The hearing on the appellant's appeal of the Associate Judge's report was on August 21, 2002. A visiting judge was present to conduct the hearing and April Niskar objected. Due to April Niskar's objection, the hearing on the appellant's appeal of the Associate Judge's report was not held. The appellant attempted to reschedule the hearing, but the 256th District Court declined to do so because of the pending transfer of the suit affecting the parent-child relationship to Collin County.

On August 16, 2002, the 380th District Court held a hearing on April Niskar's request for Temporary Orders. As a result of the hearing, the 380th District Court ordered the appellant to pay $750.00 per month in temporary spousal support to April Niskar.

On December 5, 2002, the 380th District Court found the appellant in contempt for non-payment of child support as ordered by the 256th District Court and for nonpayment of spousal support as ordered by the 380th District Court's order. The 380th District Court's order holding the appellant in contempt ordered temporary child and spousal support arrearage totaling $9,939.41 to be paid to April Niskar by January 6, 2003. The 380th District Court also heard the appellant's motion to modify the temporary child and spousal support orders requesting a decrease in the amount of moneys he was ordered to pay and a change in the visitation schedule. On January 17, 2003, the 380th District Court modified the visitation schedule by increasing the length of visitation time, on the condition that at the next three consecutive visits the appellant meet with April Niskar for two hours to learn to care for his disabled daughter; reduced the temporary spousal support to $250.00 per month beginning January 1, 2003; and ordered that the temporary child support continue at the rate of $1,000.00 per month.

There is one child from the marriage of the appellant and April Niskar. The Niskars' child is disabled. At the trial, evidence was presented that the Niskars' daughter is blind, wheelchair bound, fed through a tube, and is severely retarded. Because of these disabilities, the Niskars' daughter requires care twenty-four hours a day. Her required care includes feeding her through the tube, administering medication, monitoring changes in temperature, and clearing saliva build-ups from her mouth when she sleeps.

There was a one-day trial of the divorce action on January 23, 2003. Neither April Niskar nor the appellant requested that the order include findings stating the specific reasons for the trial court's variance from the standard possession order within ten days of the hearing. TEX. FAM.CODE ANN. § 153.258 (Vernon 2002). The trial court entered its Final Decree of Divorce on April 9, 2003. Neither the appellant nor April Niskar requested findings of fact and conclusions of law from the trial court.

On May 9, 2003, the appellant filed a Motion for Judgment Nunc Pro Tunc and a Motion for New Trial. His nunc pro tunc motion complained that there was a discrepancy between the Final Decree of Divorce and the judgment rendered by the trial court because the signed divorce decree included an order for him to maintain a life insurance policy for his daughter, which had not been rendered by the trial court. The trial court denied the appellant's Motion for Judgment Nunc Pro Tunc on June 10, 2003. The appellant's Motion for New Trial was overruled seventy-five days after the date the divorce decree was signed by operation of law, pursuant to Texas Civil Procedure Rule 329b. The appellant appeals the Final Decree of Divorce. April Niskar has not filed a brief in this appeal.

II. STANDARD OF REVIEW

A trial court has broad discretion in determining the best interest of a child in family law matters such as custody, visitation, and possession. Eg. In re Doe 2, 19 S.W.3d 278, 281 (Tex.2000); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Green v. Remling, 608 S.W.2d 905, 908 (Tex.1980). See also In re N.A.S., 100 S.W.3d 670, 672 (Tex.App.-Dallas 2003, no pet.); Jacobs v. Dobrei, 991 S.W.2d 462, 463 (Tex.App.-Dallas 1999, no pet.). Child support orders are also reviewed under an abuse of discretion standard. In re Doe 2, 19 S.W.3d at 281. See also Deltuva v. Deltuva, 113 S.W.3d 882, 886 (Tex.App.-Dallas 2003, no pet.); Burns v. Burns, 116 S.W.3d 916, 922 (Tex.App.-Dallas 2003, no pet.).

A trial court's judgment is reversed only when it appears from the record as a whole that the trial court abused its discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Gillespie, 644 S.W.2d at 451. See also In re N.A.S., 100 S.W.3d at 673; Jacobs, 991 S.W.2d at 463. A trial court abuses its discretion as to factual matters when it acts unreasonably or arbitrarily. In re M.W.T., 12 S.W.3d 598, 602 (Tex.App.-San Antonio 2000, pet. denied) (construing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)). See also Worford, 801 S.W.2d at 109; Jacobs, 991 S.W.2d at 463. A trial court abuses its discretion as to legal matters when it fails to act without reference to any guiding principles. In re M.W.T., 12 S.W.3d at 602 (construing Walker, 827 S.W.2d at 840). See also Worford, 801 S.W.2d at 109; Jacobs, 991 S.W.2d at 463. A trial court's determination of the best interest of the child will only be reversed upon a determination of an abuse of discretion because a trial court "is in the best situation to observe the demeanor and personalities of the witnesses and can `feel the forces, powers, and influences that cannot be discerned by merely reading the record.' " In re N.A.S., 100 S.W.3d at 673; In the Interest of T., 715 S.W.2d 416, 418 (Tex.App.-Dallas 1986, no writ). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds for asserting error, but are relevant factors in assessing whether a trial court abused its discretion. In re Davis, 30 S.W.3d 609, 614 (Tex.App.-Texarkana 2000, no pet.); Gray v. Gray, 971 S.W.2d 212, 213 (Tex.App.-Beaumont 1998, no pet.).

When a party does not request findings of fact, we infer that a trial court made all the necessary findings to support its judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989). See also In re T.J.S., 71 S.W.3d 452, 459 (Tex.App.-Waco 2002, pet. denied). The record is reviewed to determine whether some evidence supports the judgment. Worford, 801 S.W.2d at 109. See also In re T.J.S., 71 S.W.3d at 459. Only...