Thomas v. Thomas, 10-92-237-CV

• Decision Date: 31 March 1993
• Docket Number: No. 10-92-237-CV,10-92-237-CV
• Citation: 852 S.W.2d 31
• Parties: Tillman THOMAS, Appellant, v. Monna Patricia THOMAS, et al., Appellees.
• Court: Texas Court of Appeals

Page 31

852 S.W.2d 31

Tillman THOMAS, Appellant, v. Monna Patricia THOMAS, et al., Appellees.

No. 10-92-237-CV.

Court of Appeals of Texas,

Waco.

March 31, 1993.

Deborah Johns and Margo Michels, West Texas Legal Services, Fort Worth, for appellant.

Monna Patricia Thomas and Monna Bishop, pro se.

Kenneth W. Boyd, attorney ad litem for Ashley Thomas.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

VANCE, Justice.

Tillman Thomas appeals from a judgment awarding managing conservatorship of his daughter Ashley to her maternal grandmother, Monna Bishop. Tillman was awarded possessory conservatorship. Pat Thomas, Tillman's former wife and Ashley's mother, was awarded possessory conservatorship with supervised visitation. ¹ Tillman appeals on four points, alleging that there is no evidence or insufficient evidence to support the award of managing conservatorship to a non-parent, that the court erred in denying his pauper's affidavit, and that the court erred in failing to award him attorney's fees. We will affirm the judgment.

FACTS

Tillman and Pat were married in 1984, and Ashley was born that September. Monna testified that, before they separated in February 1986, the couple moved twelve times. After the separation, Pat and Ashley moved to Glen Rose to be near her family. Pat moved to Arlington in June 1987, leaving Ashley behind. From September 1987 to December 1990, Ashley was shuffled between her mother, her grandmother, and her maternal uncle, Michael Bishop. ² Pat worked in an Arlington topless bar, both as a dancer and a hostess, from late 1987 to 1991. She also became pregnant by a violent alcoholic and gave the baby up for adoption. Michael Bishop and his wife Jamie filed for and were awarded temporary guardianship of Ashley in January 1991, but Tillman was not notified of this suit even though he was then in contact with Pat. Tillman filed for custody in May 1991. Michael and Jamie amended their suit, asking for termination of Tillman's parental rights and seeking managing conservatorship of Ashley. Tillman reached an agreement with Michael and Jamie, who dismissed their termination suit. Monna intervened in the suit at the last minute, seeking managing conservatorship. Pat also entered the suit, seeking termination of Tillman's parental rights for failure to support Ashley and asking the court to award managing conservatorship to her mother Monna. The court awarded Monna sole managing conservatorship and made Tillman and Pat possessory conservators.

Lawrin Dean, a court-appointed investigator, performed the social study. She testified that Tillman should be appointed managing conservator. She found that he could provide the best home because he was more stable and mature. She testified that Ashley blended well with her two younger stepsisters--Tillman's daughters by his present wife, Lorna. Dean found nothing to disqualify him, although she felt he could have done more to find and support Ashley in the years since his separation from Pat. She was not concerned with his moving Ashley to Arkansas schools because the child, although she was just in first grade, had been in several different schools as a result of being shuffled between family members. Although Dean found no fault with Monna, she felt that a child should be with a parent, if possible, rather than a grandparent or other family member.

Tillman testified that Ashley lived with him and Lorna in the Dallas area for approximately seven months in 1987. ³ According to Tillman, Pat picked up Ashley for a weekend visitation and never returned the child. He went to Pat's Arlington apartment and her last place of employment, but he was unable to find them. He contacted a lawyer who told him a child custody case would cost $5,000 or more, plus the cost of a private investigator, and that it could take six months to a year. Tillman testified that he tried to locate Ashley by calling Monna in Glen Rose, but that Monna threatened to call the police and later had her phone disconnected. ⁴

Tillman further testified that after the separation, he had asked Pat for a divorce but she had refused. He and Lorna moved to Arkansas in August 1988. In 1989, he filed for divorce from Pat in Arkansas and, not knowing her whereabouts, had her served by publication. The Arkansas court granted the divorce but did not determine custody of Ashley. Lorna and Tillman married shortly before the birth of their second child. The family lives in Gasville, Arkansas, in a home that they are buying.

Tillman received a call from Sharon Alexander in June 1990. Alexander, a childhood friend of Pat's and also a nude dancer, informed Tillman that Ashley was living with Pat and was in danger. She told Tillman that Pat was bringing Ashley to the topless club, that Pat was involved in prostitution, that Pat had been involved with and exposed Ashley to a violent, alcoholic boyfriend, and that the child was being shuttled between Pat's family members. Tillman testified that he contacted Arkansas Legal Aid but was told he would need an attorney in Texas. He then hired a Cleburne attorney to locate his daughter and begin custody proceedings, borrowing the $1000 retainer from the bank. The Cleburne attorney failed to get any information on Ashley's whereabouts and eventually returned the retainer.

In December 1990, Pat sent a Christmas card to Tillman's aunt with her telephone number enclosed. The aunt contacted Tillman who in turn phoned Pat. According to Tillman, Pat told him that Ashley was living with her in Arlington--when in fact she was with Michael and Jamie in Glen Rose--and that he would be able to see Ashley over spring break. Pat did not tell Tillman that Michael and Jamie had been named Ashley's temporary guardians.

Tillman does not dispute that he did not provide monetary support for Ashley after late 1987. He testified that he offered to buy food and groceries but did not give Pat money because he was afraid she would use it on drugs or alcohol. Pat testified that she had asked Tillman for help at various times and that he had refused. She denied trying to hide Ashley from him. Testimony from various witnesses revealed that, besides dancing in the nude club, Pat had alcohol and drug problems. She had also been involved in an abusive relationship which resulted in the birth of a child whom she placed for adoption. Pat admitted that Ashley had been raised mostly by her mother Monna and brother Michael. Monna Bishop testified that Tillman knew where she lived in Glen Rose, but that he had never tried to contact her to determine Ashley's whereabouts.

CONSERVATORSHIP

In points one and two, Tillman asserts that the court erred in granting managing conservatorship to Monna, a nonparent, because there is no evidence or insufficient evidence that his appointment would significantly impair Ashley, either emotionally or physically. A parent shall be appointed sole managing conservator unless the court finds that the appointment of the parent would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development. TEX.FAM.CODE ANN. § 14.01(b)(1) (Vernon Supp.1993). The language of section 14.01(b)(1), requiring a showing that appointment of the parent would significantly impair the child's physical or emotional development, creates a strong presumption in favor of parental custody and imposes a heavy burden on a nonparent. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.1990). It is no longer adequate to offer only evidence that the nonparent would be a better custodian of the child; "[T]he nonparent must affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally." Id. (emphasis original). The nonparent must "offer evidence of specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child." Id. (emphasis added).

STANDARD OF REVIEW

In reviewing a legal-sufficiency point, or "no evidence" point, we must consider only the evidence and inferences, when viewed in their most favorable light, that tend to support the finding, and disregard all evidence and inferences to the contrary. See id. at 166. If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Id. Under a factual sufficiency challenge, we must examine all of the evidence and determine whether the evidence is so weak that the court's finding is clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We still work within the presumption that the best interest of the child is served by awarding custody to a natural parent. See Lewelling, 796 S.W.2d at 166.

Monna Bishop, as the nonparent, bore the burden of identifying some act or omission committed by Tillman which demonstrates that naming him as managing conservator will significantly impair Ashley's physical health or emotional development. See id. at 167. In a non-jury case, the trial court is the judge of the credibility of the witnesses and the weight to be given their testimony. Aatco Transmission Co. v. Hollins, 682 S.W.2d 682, 686 (Tex.App.--Houston [1st Dist.] 1984, no writ).

The trier of fact has several alternatives available when presented with conflicting evidence: It may believe one witness and disbelieve others; it may resolve inconsistencies in the testimony of any witness; it may accept lay testimony over that of experts. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986).

FINDINGS OF FACT & CONCLUSIONS OF LAW

The court made the following findings of fact which are relevant to the question presented:

4. Tillman Thomas knew that Ashley Thomas was residing primarily in Glen Rose, Texas, with Monna Bishop for extended periods of time...