Pena v. Pena

• Decision Date: 30 December 1998
• Docket Number: No. 13-97-793-CV,13-97-793-CV
• Citation: 986 S.W.2d 696
• Parties: Diana S. PENA, Appellant, v. Omar Ismael PENA, Appellee.
• Court: Texas Court of Appeals

Page 696

986 S.W.2d 696

Diana S. PENA, Appellant, v. Omar Ismael PENA, Appellee.

No. 13-97-793-CV.

Court of Appeals of Texas,

Corpus Christi.

Dec. 30, 1998.

Rehearing Overruled March 11, 1999.

Richard B. Gould, McAllen, for appellant.

Roel Flores, McAllen, Alfredo Morales, Jr., Edinburg, for appellee.

Before Chief Justice SEERDEN and Justices DORSEY and CHAVEZ.

OPINION

SEERDEN, Chief Justice.

Diana S. Pena appeals from a divorce decree awarding joint managing conservatorship of the child, J.R., to both Diana and Omar I. Pena. By five points of error, Diana contends that credible evidence of family violence by Omar prohibited his appointment as a joint managing conservator, and that the trial judge was disqualified to hear the case. We affirm.

By her first and second points of error, Diana complains that the trial court abused its discretion in appointing Omar as joint managing conservator because the evidence showed as a matter of law, and by the great weight and preponderance, a pattern and history of physical abuse by Omar against Diana and one of her children.

The Texas Family Code provides that "[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." TEX. FAM.CODE ANN. § 153.002 (Vernon 1996). The trial court has wide discretion in determining what is in the best interest of the child and its judgment regarding conservatorship will not be disturbed on appeal unless it is shown from the record as a whole that the court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Cole v. Cole, 880 S.W.2d 477, 479 (Tex.App.--Fort Worth 1994, no writ); Hopkins v. Hopkins, 853 S.W.2d 134, 136 (Tex.App.--Corpus Christi 1993, no writ).

However, the Family Code further states that a history of domestic violence by a parent should be considered by the trial court and is inconsistent with that parent's appointment as a joint managing conservator. The code provides as follows:

(a) 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 or during the pendency of the suit.

(b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child.

(c) The court shall consider the commission of family violence in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.

TEX. FAM.CODE ANN. § 153.004 (Vernon 1996). Accordingly, a trial judge making a custody determination must consider credible evidence of violence committed by one parent against the other. Interest of M.R., 975 S.W.2d 51 (Tex.App.--San Antonio 1998, review denied).

In imposing a joint conservatorship on parties that have not already agreed to it, the trial court must consider certain statutory factors, including 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. TEX. FAM.CODE ANN. § 153.134(a)(2) (Vernon 1996).

In the present case, Diana testified that Omar hit her in the face on two occasions during arguments about his daughters and his ex-wife, causing a black eye each time, and that Omar once dragged her and tore her jeans. ¹ Diana's cousin, Laura Garcia, testified that she saw one of the black eyes which Diana attributed to Omar. Omar testified at trial but did not deny the allegations that he hit and dragged Diana.

While Diana's uncontroverted testimony concerning two hitting incidents and one dragging incident amounts to evidence of physical abuse, it does not necessarily establish a history or pattern of abuse sufficient to prohibit the trial court from ordering a joint managing conservatorship. The phrase "history or pattern" is not defined by the statute. However, similar phrases in other statutes prohibiting a "pattern of racketeering activity" have been interpreted to require more than merely repeated instances of the prohibited conduct, but must include some relationship among the separate instances that tends to connect them and to show a threat of continuing violations. See H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 109 S.Ct. 2893, 2900-01, 106 L.Ed.2d 195 (1989) (interpreting the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968). Another federal court concluded that the phrase "pattern or practice" in violation of the Civil Rights Act must be shown by more than isolated or accidental violations, but requires intentional, regular or repeated violation of the right granted by the Act. United States v. Hunter, 459 F.2d 205, 217 (4 th Cir.1972) (cited in BLACK'S LAW DICTIONARY 1015 (5 th ed.1979), defining "pattern").

In the present context of domestic abuse, moreover, not only the phrase "history or pattern," but also the very nature of "physical abuse," remains subject to wide variations and varying interpretations. Therefore, each case must be carefully considered according to its specific factual situation.

In the present case, the two hitting incidents left Diana with a black eye each time. However, Diana's testimony only vaguely connects the two hitting incidents as both having been precipitated by arguments over Omar's ex-wife and daughters. We do not know who initiated the arguments, whether the hittings were provoked in any manner, or what other factors may have contributed to either or both incidents, or any other relevant details that may show a relationship, connection or predictable "pattern" of physical abuse.

While we do not suggest that the trial court would err in finding a pattern of physical abuse on the present record, neither do the facts establish such a pattern as a matter of law. We overrule Diana's first and second points of error.

By her third point of error, Diana contends that the great weight and preponderance of the evidence showed that her appointment as sole managing conservator would have been in the best interest of the child. As we stated earlier, the trial court has wide discretion in determining what is in the best interest of the child. Gillespie, 644 S.W.2d at 451; Cole, 880 S.W.2d at 479; Hopkins, 853 S.W.2d at 136.

Diana points to evidence before the trial court that she had stable employment in San Antonio, that J.R. got along well with her two other children by a prior marriage, that Omar had not been able to maintain stable employment as a salesman, that he had gotten $12,000 behind in child support for his own children by a prior marriage and was still $2,800 behind, that Diana had seen Omar use cocaine and sell drugs out of their house, that Omar spanked J.R. on occasion and had yelled at him to the point that he would cry, and that Omar once had J.R. sleep in the same bed with Omar and his girlfriend.

However, the trial court also heard evidence that Omar had a very good relationship with J.R., that J.R. spoke highly of him, and that Omar was a good parent, that it was in J.R.'s interest to remain close to his grandparents on both sides, who lived in the Rio Grande Valley as did Omar, that Omar had temporary custody of J.R. during the week for the nine-month period before the hearing and took him to and from school and other events, and that Omar has now been employed at the same place for the past five years.

Accordingly, we conclude that the great weight of the evidence did not predominate in favor of appointing Diana sole managing conservator and that the trial court acted within its discretion in appointing both parties joint managing conservators. We overrule Diana's third point of error.

By her fourth and fifth points of error, Diana complains that the trial judge was disqualified to hear the present case because he had a pecuniary interest in the outcome by virtue of his attorney-client relationship with Omar's attorney.

In Texas, judges may be removed from a particular case either because they are constitutionally disqualified, ...