Simons v. Simons
| Decision Date | 09 March 2023 |
| Docket Number | 11-21-00066-CV |
| Parties | PAUL E. SIMONS, Appellant v. KAREN COLE SIMONS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 318th District Court Midland County, Texas Trial Court Cause No. FM67240.
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
This appeal arises from a final divorce decree that dissolved the marriage of Appellant, Paul E. Simons, and Appellee, Karen Cole Simons,[1] and determined the division of their community estate and the conservatorship of their child E.P.S. Appellant is proceeding on appeal without the assistance of counsel.[2] In five issues Appellant asserts that the trial court abused its discretion when it (1) effectively terminated his parental rights without due process, (2) awarded one hundred percent of the community estate to Appellee, (3) failed to reconstitute the community estate upon the jury's findings of Appellee's fraud on the community and waste, (4) excluded Appellant's summary judgment evidence, and (5) failed to consider the jury's findings of fraud on the community and waste in its findings of fact and conclusions of law. We affirm.
Before the initiation of the underlying divorce action, Appellant pleaded guilty to and was convicted of the offense of aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021(a)(2)(B) (West Supp. 2022). He also pleaded guilty to and was convicted of two counts of aggravated assault with a deadly weapon. See id. § 22.02(a)(2). As a result of his convictions, Appellant was twice sentenced to fifteen years' imprisonment in the Texas Department of Criminal Justice, Institutional Division; the trial court ordered Appellant's sentences to be served concurrently. Appellant also pleaded guilty to and was convicted in federal court of the offense of production of child pornography and sentenced to 360 months' imprisonment; the federal district court ordered that Appellant's federal sentence would be served consecutively to his state sentences. See 18 U.S.C. § 2251(a). The victim of Appellant's sex-related offenses was Appellant's minor stepdaughter, the daughter of Appellee. Appellant's minor stepdaughter and Appellee were also the victims of Appellant's aggravated assault offenses.
While incarcerated, Appellant filed the underlying divorce action, in which he alleged that Appellee had committed adultery and treated him cruelly during their marriage. Appellee answered and filed a counterpetition for divorce, alleging that Appellant had treated her cruelly during their marriage. Appellant filed a motion for summary judgment, which the trial court denied, and later requested a jury trial. The jury found, among other things, that (1) Appellant was guilty of cruel treatment against Appellee during their marriage, (2) Appellee had not engaged in cruel treatment against Appellant during their marriage, but that Appellee had committed adultery, fraud on the community, and waste, and (3) Appellant should be named possessory conservator of E.P.S.
Consistent with the jury's findings and its discretion to determine the parties' rights and access to E.P.S., the trial court signed a final decree of divorce in which it (1) appointed Appellee sole managing conservator of E.P.S., (2) appointed Appellant possessory conservator with no rights of possession of or access to E.P.S., and (3) awarded one hundred percent of the community estate to Appellee. Upon Appellant's request, the trial court entered findings of fact and conclusions of law. This appeal followed.
The standard of review for all of Appellant's issues is "abuse of discretion." "A trial court abuses its discretion when it acts 'without reference to any guiding rules or principles; or in other words, [when it acts] arbitrarily or unreasonably.'" In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021) (alteration in original) (quoting Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)).
A. Conservatorship-Possession of and Access to the Child
Appellant's brief, liberally construed, raises two sub-issues in support of his first issue: (1) the trial court's denial of possession of or access to E.P.S. is tantamount to a termination of Appellant's parental rights, and such a termination (a) requires a hearing and (b) must be "strictly scrutinized"; and (2) no evidence exists in the record of any neglect or abuse committed toward E.P.S.
As noted, we review a trial court's decisions regarding conservatorship under an abuse of discretion standard. In re J.J.R.S., 627 S.W.3d at 218 (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). In this context, challenges to the legal or factual sufficiency of the evidence are not separate grounds of error, but instead are relevant factors to consider in assessing whether the trial court abused its discretion. In re R.T.K., 324 S.W.3d 896, 899 (Tex. App.-Houston [14th Dist.] 2010, pet. denied). There is no abuse of discretion provided that some evidence of a substantive and probative character supports the trial court's decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); see In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.-Fort Worth 2010, no pet.) ("[W]e consider whether the trial court had sufficient information upon which to exercise its discretion and whether it erred in its application of that discretion.").
Parsing the case law cited in Appellant's brief as to this issue, we construe his contention to be that the trial court's denial of Appellant's possession of or access to E.P.S. is an abuse of discretion because the evidence does not show that this case presents the rare, "extreme circumstances" in which a complete denial of access is appropriate. In re Walters, 39 S.W.3d 280, 287 (Tex. App.-Texarkana 2001, no pet.); Green v. Green, 850 S.W.2d 809, 812 (Tex. App.-El Paso 1993, no writ). As a result of this, as we construe Appellant's argument, the trial court's denial of Appellant's possession of or access to E.P.S. amounts to an improper termination of his fundamental parental rights, and, in doing so, the trial court violated Appellant's constitutional right to due process.
In any case that involves a conservatorship determination, the best interest of the child is always the trial court's primary consideration. Tex. Fam. Code Ann. § 153.002 (West 2014); J.J.R.S., 627 S.W.3d at 218; In re A.J.E., 372 S.W.3d 696, 698 (Tex. App.-Eastland 2012, no pet.); see also Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). "As conservatorship determinations are intensely fact driven, the trial court is in the best position 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." J.J.R.S., 627 S.W.3d at 218 (internal quotations and citations omitted). "A trial court's determination of what is in the child's best interest, specifically the establishment of terms and conditions of conservatorship, is a discretionary function." Id.
A parent shall be appointed his or her child's sole managing conservator, or both parents shall be appointed joint managing conservators of their child, unless the trial court finds that the appointment would not be in the child's best interest "because the appointment would significantly impair the child's physical health or emotional development." Fam. § 153.131(a); see J.J.R.S., 627 S.W.3d at 218. A parent who is not appointed managing conservator shall be appointed possessory conservator, unless the trial court finds that such appointment is not in the best interest of the child and that parental possession of or access to the child would endanger the child's physical or emotional welfare. Fam. § 153.191; see J.J.R.S., 627 S.W.3d at 218.
When a trial court appoints a parent as possessory conservator, it may grant, deny, restrict, or limit (1) the possessory conservator's possession of or access to the child and (2) any other rights, privileges, duties, and responsibilities with respect to the child that are necessary to protect the child's best interest. In re Marriage of Patel & Parrish, 643 S.W.3d 216, 223 (Tex. App.-Texarkana 2022, no pet.) (citing In re B.P., Jr., No. 02-07-00251-CV, 2008 WL 2639264, at *7 (Tex. App.-Fort Worth July 3, 2008, no pet.) (mem. op.)); see Fam. §§ 153.191-.193. The Family Code creates a rebuttable presumption that the standard possession order is in the best interest of the child. See Fam. § 153.252. When, however, sufficient evidence rebuts this presumption, the trial court may fashion a possession schedule that deviates from the standard possession order. See id. § 153.256 (); C.W. v. B.W., No. 02-19-00270-CV, 2020 WL 4517325, at *5 (Tex. App.- Fort Worth Aug. 6, 2020, no pet.) (mem. op.). The Family Code further mandates that a trial court must "consider the commission of . . . sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator." Fam. § 153.004(c) (West Supp. 2022); see also id. § 153.256. An order that restricts a parent's right to possession of or access to a child may not impose restrictions beyond those that are required to protect the child's best interest. Id. § 153.193.
"[T]he relationship between parent and child is constitutionally protected." Fish v. Lebrie, No. 03-09-00387-CV 2010 WL 5019411, at *3 (Tex. App.-Austin Dec. 10, 2010, no pet.) (mem. op.) (alteration in original) (quoting Quilloin v. Walcott, 434...
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