Whitworth v. Whitworth

• Decision Date: 16 March 2007
• Docket Number: No. 01-04-01026-CV.,01-04-01026-CV.
• Citation: 222 S.W.3d 616
• Parties: Tammy Renee WHITWORTH, Appellant, v. Douglas Wayne WHITWORTH, Appellee.
• Court: Texas Court of Appeals

222 S.W.3d 616

Tammy Renee WHITWORTH, Appellant, v. Douglas Wayne WHITWORTH, Appellee.

No. 01-04-01026-CV.

Court of Appeals of Texas, Houston (1st Dist.).

March 16, 2007.

Walter P. Mahoney, Jr., The Mahoney Law Firm, Pasadena, for Appellant.

Marla Mitschke, Linda G. Cryer, Houston, for Appellee.

Panel consists of Justices NUCHIA, KEYES, and HANKS.

OPINION ON REHEARING

GEORGE C. HANKS, JR., Justice.

Carol Whitworth, the intervenor, filed a motion for rehearing. We withdraw our Opinion and Judgment of November 22, 2006 and grant the motion for rehearing.

Appellant, Tammy Renee Whitworth, challenges the trial court's final decree of divorce that named intervenor, Carol Whitworth, sole managing conservator of Tammy's minor child, K.C. In two issues on appeal, Tammy argues that the trial court erred (1) in failing to name her as joint managing conservator and (2) in giving her less than a standard possession order. We affirm.

Background

Tammy and Douglas Whitworth married in August 2000, but separated in September or October 2000. Douglas filed an original petition for divorce a couple of months later. A second original petition for divorce was filed by Tammy, and the trial court signed an order of consolidation. Tammy and Douglas's only child, K.C., was born on June 13, 2001.¹ By order entered November 30, 2001, Tammy was given custody of K.C. and Douglas was given two hours a day visitation five days a week and ordered to pay $500 a month to Tammy as temporary spousal support. Three months later, Tammy filed a motion for enforcement of temporary spousal support.

Almost one year after Tammy was given custody, the trial court heard the parties' application for temporary custody orders pending the divorce. Although we have no transcript of the hearings held on a Friday and Monday, testimony from the divorce hearing indicates that the trial court heard testimony that Tammy had repeatedly denied Douglas access to K.C., had alleged that Douglas sexually abused A.C., K.C.'s half-sister, and feared his unsupervised visitation with K.C. Douglas repeatedly denied these allegations. The testimony further indicated that, during the course of the earlier hearing, the trial court ordered Tammy to have her mother, Gayle Cash, bring K.C. to the court and warned her numerous times that she would be held in contempt if she did not, but Tammy did not have K.C. brought to the court. The docket sheets reflect that, at the end of the Friday hearing, the trial court found Tammy in contempt and sentenced her to 10 days in jail for "continuous parental alienation against father through repeated visitation/access denials and behavior in court."

On the same day as the Friday hearing, Carol Whitworth, Douglas's mother, filed an original petition for intervention stating that she was K.C.'s paternal grandmother and requesting that K.C. be placed in her care on "a temporary and/or permanent basis."

Tammy stayed in jail for the weekend and appeared in court for the continuation of the hearing on Monday. At the end of the hearing, the trial court entered an order appointing Carol, the intervening grandparent, as temporary sole managing conservator of K.C. and Tammy and Douglas as temporary possessory conservators with only supervised rights of possession for four hours every other week through the SAFE Supervised Visitation Program of the Victim's Assistance Center ("SAFE"). The docket sheet from the Monday hearing stated that Tammy and her mother, Gayle Cash, had "exercised continuous parental alienation against father through repeated visitation/access denials and behavior in court during this hearing" and that supervised visitation was ordered because of the seriousness of the allegations against Douglas and the fact that the trial court deemed Tammy a "flight risk with child as demonstrated by her behavior to court since 10/18/02 [the Friday hearing]." The trial court ordered Dr. Edward Silverman to conduct psychological evaluations of Tammy, Douglas, and Carol. Both Tammy and Douglas were ordered to pay Carol child support for K.C. and to ensure the maintenance of health insurance for K.C. The trial court also enjoined Tammy from telephoning Carol and from going within 50 feet of Carol's residence. Four months later, the trial court also ordered that Tammy and Douglas were enjoined from taking photos of K.C. while she was at SAFE.

More than one year later, on April 13, 2004, the trial court heard evidence to determine custody of two-year-old K.C. At the time of trial, Douglas was not seeking primary custody of the child. The trial court entered a final decree of divorce stating that neither Tammy nor Douglas would be the managing conservator of K.C. because it "would not be in the best interest of the child because such appointment would significantly impair the child's physical health or emotional development."

The decree ordered that Carol, the intervening grandparent, be appointed as the sole managing conservator of K.C. The trial court found that a standard possession order for either Tammy or Douglas was inappropriate and not in the best interest of K.C. It ordered that Tammy continue to have only supervised visitation for four hours every other Saturday and that Douglas have supervised visitation to be determined by his mother, Carol. The trial court entered no findings of fact or conclusions of law. Two months later, Tammy filed a motion for new trial, which the trial court denied. Tammy appeals from the trial court's custody determination in the divorce decree.

Standing

We first review Carol's standing to intervene in this action. The parties did not raise standing in their initial set of briefs nor was a motion to strike the intervention filed with the trial court, but we may address it sua sponte.² We review a court's determination of a grandparent's standing to intervene in a pending divorce proceeding under an abuse of discretion standard. See TEX. FAM.CODE ANN. § 102.004(b) (Vernon Supp.2006). A trial court abuses its discretion when its decision is arbitrary or unreasonable. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982).

Carol has standing to intervene in this action. Generally, an intervenor must show standing to maintain an original suit in order to intervene. Segovia-Slape v. Paxson, 893 S.W.2d 694, 696 (Tex.App.-El Paso 1995, no writ); McCord v. Watts, 777 S.W.2d 809, 812 (Tex.App.-Austin 1989, no writ). This showing requires that the intervenor have some present justiciable interest in the subject matter of the suit. Segovia-Slape, 893 S.W.2d at 696. However, an intervenor in a suit affecting the parent-child relationship does not need to plead or prove the standing required to institute an original suit because managing conservatorship is already in issue. Id. Specifically, section 102.004(b) of the Family Code provides that the trial court may grant a grandparent leave to intervene in a pending suit filed by a party authorized under section 102 of the Family Code to bring an original suit affecting the parent-child relationship. Section 102.004(b), as it existed at the time that Carol and Douglas filed their divorce, provided that:

An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter.

TEX. FAM.CODE ANN. § 102.004(b) (Vernon Supp.2006) (emphasis added); see In re M.A.M., 35 S.W.3d 788, 790 (Tex.App.-Beaumont 2001, no pet.) (holding that trial court did not abuse its discretion by allowing the intervention of biological grandparent under section 102.004(b)); McCord, 777 S.W.2d at 812 ("It has been held that, as a matter of law, grandparents possess a justiciable interest in their grandchild" and that grandparents who intervene in a proceeding are not required to plead and prove the requirements for standing to bring an original action.). This subchapter applies to interventions seeking managing conservatorships as well as those seeking possessory conservatorships. In re Hidalgo, 938 S.W.2d 492, 496 (Tex.App.-Texarkana 1996, no writ).

This relaxed standing rule for intervention promotes the overriding policy in all suits affecting the parent-child relationship, that of protecting the best interest of the child. Segovia-Slape, 893 S.W.2d at 696; see also In the Interest of K.T. & M.T., 21 S.W.3d 925, 927 (Tex.App.-Beaumont 2000, no pet.) ("Sound policy underlies the Legislature's creation of a relaxed standing rule subject to court discretion for intervention in an existing suit. Where a suit is already pending, concern for the privacy of the parties is subordinate to the overriding concern for the best interest of the children."); Harrison v. Harrison, 734 S.W.2d 737, 740-41 (Tex.App.-Eastland 1987, no writ) ("There is a significant difference between filing an original proceeding which could disrupt the children's relationship with their parents and intervening in a pending suit in which that relationship had been sufficiently interrupted to cause the filing of a suit requiring the courts to decide what decree would be in the children's best interest."); Young v. Young, 693 S.W.2d 696, 698 (Tex.App.-Houston [14th Dist.] 1985, writ dism'd) ("Intervention under these circumstances may enhance the trial court's ability to adjudicate the cause in the best interests of the child."). Thus, while the statutory scheme assures that grandparents are not entitled to disrupt the child's family life and initiate suits for managing conservatorship except in limited circumstances, once the child's best interest is before the court and being litigated, the trial court has discretion to determine that the intervention by a grandparent may enhance the trial court's ability to adjudicate what is in the best interest of the...