Wimpey v. Wimpey
| Citation | 662 S.W.2d 680 |
| Decision Date | 10 November 1983 |
| Docket Number | No. 05-82-01155-CV,05-82-01155-CV |
| Parties | Tammy June WIMPEY, Appellant, v. Arlon Monroe WIMPEY, Appellee. |
| Court | Court of Appeals of Texas |
Burt Barr, Dallas, for appellant.
S.L. Lewis, Dallas, for appellee.
Before AKIN, ALLEN and STEWART, JJ.
This is an appeal by a mother from a judgment of divorce appointing the paternal grandparents as managing conservators of her daughter. The principal question is whether the trial judge may consider and rely upon a social study made pursuant to TEX.FAM.CODE ANN. § 11.12 (Vernon 1975), when that social study had not been introduced into evidence. We hold that the trial judge may do so. A second question is whether the TEXAS FAMILY CODE authorizes a court to grant managing conservatorship to grandparents. We hold that it does. Accordingly, we affirm.
Arlon Wimpey, Jr., sued Tammy Wimpey for divorce seeking to place managing conservatorship of the couple's daughter with his parents. In response, Tammy Wimpey counterclaimed, seeking managing conservatorship of the daughter. The trial court allowed the child's paternal grandparents to intervene and to independently seek managing conservatorship of the child. The paternal grandparents had been appointed temporary managing conservators of the child in a previous divorce action between the parents which did not result in a final decree. 1 The present case was tried to the judge, sitting without a jury. After a trial, the judge granted divorce and placed managing conservatorship with the paternal grandparents with visitation by the mother, who was named a possessory conservator. Visitation was limited to one supervised visit a month away from the paternal grandparents' home and "at other reasonable times in the home of the paternal grandparents." From the conservatorship and visitation provisions of the decree, the mother now appeals. We hold that neither the conservatorship nor the visitation orders of the trial court constitute an abuse of discretion. Accordingly, we affirm.
The mother argues that the trial court erred in granting managing conservatorship to the paternal grandparents because a presumption exists that it is in the best interest of the child to place custody with a parent. To rebut this presumption, she contends that the grandparents have the burden to show by clear and convincing evidence that it is in the child's best interest for a person, other than a parent, to be appointed managing conservator. According to the mother, no evidence was adduced showing that she was an unfit mother or that the paternal grandparents would be superior managing conservators. In this respect, she contends that she can find no authorization in the Family Code for the appointment of grandparents as managing conservators. We disagree with both contentions.
With respect to whether grandparents may be named managing conservators of a child, TEX.FAM.CODE ANN. § 14.01(a) (Vernon 1975) authorizes that trial judge to "appoint a managing conservator, who must be a suitable competent adult, or a parent, or an authorized agency." [Emphasis added]. Although this language does not mention grandparents, a grandparent may fall within the ambit of "suitable competent adult." This language is consistent with the policy of the family code requiring the trial judge to look to the best interests of children in appointing managing conservators. Consistent with this policy, TEX.FAM.CODE ANN. § 14.01(b) (Vernon 1975) 2 requires the judge to appoint a parent "unless the court finds appointment of the parent would not be in the best interest of the child." Unlike termination cases, the burden of the non-parent is to prove by a preponderance of the evidence that appointing the parent managing conservator is not in the child's best interest and that the child's best interest would be served by naming the non-parent. TEX.FAM.CODE ANN. § 11.15. Choyce v. Dallas County Child Welfare Unit, 642 S.W.2d...
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