Parsons v. Parsons

• Decision Date: 18 December 1986
• Docket Number: No. B14-86-128-CV,B14-86-128-CV
• Citation: 722 S.W.2d 751
• Parties: Sandra Gallagher PARSONS, Appellant, v. Clarence Stahl PARSONS, Jr., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 751

722 S.W.2d 751

Sandra Gallagher PARSONS, Appellant, v. Clarence Stahl PARSONS, Jr., Appellee.

No. B14-86-128-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 18, 1986.

Neva Steelhammer, Houston, Ronald S. Bradshaw, Pasadena, Edward E. Lindsay, Houston, for appellant.

Grady W. James, Jr., Conroe, Joe H. Rentz, Susan Battelstein, Houston, for appellee.

Before SEARS, CANNON and DRAUGHN, JJ.

OPINION

CANNON, Justice.

Sandra Parsons (appellant) appeals from an order in which the managing conservatorship of a minor child, Stephanie Ann Parsons, was modified. Managing conservatorship was taken from the mother and awarded to the father. In eight points of error appellant asserts that the trial court erred (1) in overruling her motion for judgment n.o.v. due to insufficient and/or no evidence to support the verdict; (2) in excluding the videotaped testimony of the minor child; (3) in failing to make a record of the audio testimony of the videotape while it was being viewed outside the jury's presence; and (4) in allowing the videotaped testimony of the minor child to be removed from the court's custody. We are not persuaded by her contentions and, therefore, affirm.

Stephanie Ann Parsons was born on November 29, 1981, to Sandra Gallagher Parsons and Clarence Stahl Parsons, Jr. (appellee). On June 28, 1983, the Parsons were granted a decree of divorce which provided for the appointment of the mother as managing conservator and the father as possessory conservator of this child. Both parties filed motions to modify the conservatorship in 1984 and, at a hearing on May 31, 1985, the trial court ordered that Family Court Services be appointed as temporary managing conservator and that both parents be named as temporary possessory conservators. The court then appointed Dr. Sallye Webster (a clinical psychologist) to test and evaluate all parties and make recommendations to the court. Appellee filed an emergency motion to modify this temporary order and, at a hearing in August 1985, the appellee was appointed the temporary custodial parent. Following a jury trial in November of 1985, appellee was appointed managing conservator of Stephanie Ann Parsons.

In points of error one through five, appellant asserts that the trial court erred in overruling her motion for judgment n.o.v. and/or her motion for new trial. Specifically, appellant complains of the legal and factual sufficiency of the evidence to support the jury's affirmative answer to Special Issue No. 1, which inquired whether there had been a material and substantial change in the circumstances of the child, the managing conservator or the possessory conservator since the entry of the divorce decree on June 28, 1983. Further, appellant contests the factual sufficiency of the evidence to support the jury's affirmative answer to Special Issue No. 3, which stated that the appointment of the appellee as managing conservator would be a positive improvement for the child.

In reviewing the factual sufficiency of the evidence to support a jury's answer to special issues, we consider and weigh all of the evidence in the case to determine whether the evidence is insufficient or if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In Re King's Estate, 244 S.W.2d 660, 661 (Tex.1951). In our effort to understand the mental process of the jury in reaching its decision, we have thoroughly reviewed the record and all evidence submitted to the jury. Realizing that appellate courts are not fact finders but merely have the power to "unfind facts" which a jury or trial judge has improperly found, we rely on the language of Justice Robertson in his concurring opinion in Dyson v. Olin Corp., 692 S.W.2d 456, 458 (Tex.1985). The courts of appeals should only exercise their fact jurisdiction to prevent a manifestly unjust result; moreover, those courts "are not free to reweigh the evidence and set aside a jury verdict merely because the judges feel that a different result is more reasonable." Id. Consequently, in applying this reasoning to our review of the facts presented at trial, we find sufficient facts to support the jury's answers to special issues one and three. Therefore, we cannot set aside the jury's findings in the instant case. Moreover, because we have found the evidence factually sufficient to support the jury's answer to Special Issue No. 1, we also find that the evidence is legally sufficient to support the jury's answer to this special issue. Points of error one through five are overruled.

In points of error six through eight appellant directs the court's attention to the videotape of Stephanie Ann Parsons and maintains that the trial court erred in excluding the videotape, in failing to make a record of the audio portion of the videotape and in allowing the videotape to leave its custody. The videotape was made by the Montgomery County Sheriff's Department on March 12, 1985, as part of its investigation into child sexual abuse allegations made by appellant against appellee. The videotape supposedly consisted of dialogue between Stephanie Ann Parsons and Edie Conley, a detective with the Montgomery County Sheriff's Department. During the trial the videotape was offered into evidence. After argument before the court, the videotape was viewed by the court and counsel out of the presence of the jury. Following the viewing, the court found the videotape to be inadmissible, stating that "it should be removed out of the sight of the jury." Although a court reporter was present at the showing of the tape, no record of the audio testimony from the tape was made. Furthermore, counsel for appellant did not request that the videotape be marked as an exhibit. Following the court's ruling, which denied admission of the tape, Mrs. Parsons' attorney said: "Your Honor, if I have not made it clear for the record, please note my exception and I will offer the tape and the testimony as a Bill of Exception." The court replied: "I will certainly take note of your exception for the record." However, the videotape was not marked as an exhibit and was not transcribed. Subsequently, the video tape was returned to the Montgomery County Sheriff's Department.

Appellant argues that the court abused its discretion by excluding the videotaped testimony of Stephanie Ann Parsons and that an improper verdict resulted. Appellant points to Section 11.21(b) of the Texas Family...