Rosemary Baca v. Erasmo Baca ( 2016 )

Opinion filed August 25, 2016
In The
Eleventh Court of Appeals
__________
No. 11-15-00147-CV
__________
ROSEMARY BACA, Appellant
V.
ERASMO BACA, Appellee
On Appeal from the County Court at Law
Ector County, Texas
Trial Court Cause No. CC-24,851
MEMORANDUM OPINION
This is an appeal from a final decree of divorce in which the trial court
appointed Rosemary1 Baca (Appellant) and Erasmo Baca (Appellee) as joint
managing conservators of their minor child, A.B. The trial court further appointed
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We note that Appellant’s name is “Rose Maria” in her notice of appeal. Appellant’s name in her
answer, in her counterpetition, in the final decree of divorce, and in her brief to this court is “Rosemary.”
When Appellant testified, she also introduced herself as “Rosemary Baca.” Accordingly, we have styled
this case “Rosemary Baca v. Erasmo Baca.”
Appellee as the conservator with the exclusive right to designate the primary
residence of the child and ordered Appellant to pay child support to Appellee in the
amount of $200 per month. We affirm.
We first note that Appellant has failed to comply with TEX. R. APP. P. 38.1.
Appellant’s brief is comprised of five hand-written pages in which she attacks the
representation of the three attorneys that represented her during her divorce
proceeding, alleges that there was no proof of abuse or neglect of the children, and
attacks the trial court’s denial of spousal maintenance and obligation to pay spousal
rehabilitation. Appellant describes her filing as a “letter” and has not included any
citations to the record or to any applicable law. Despite the fact that Appellant has
failed to file a brief that meets the requirements of Rule 38.1, we will, nevertheless,
address Appellant’s arguments in the interest of justice.
Appellee identified four issues addressed by Appellant and responded to each
of those four issues. In doing so, Appellee characterized Appellant’s issues as
follows: (1) a claim of ineffective assistance of counsel; (2) a challenge to the
sufficiency of the evidence regarding the trial court’s custody determination; (3) a
challenge to the trial court’s failure to award spousal maintenance; and (4) a
challenge to the trial court’s failure to award rehabilitation alimony. We agree with
Appellee’s characterization of the issues and will address Appellant’s arguments as
such.
Appellant’s claim that her three attorneys rendered ineffective assistance is
without merit. Claims of ineffective assistance of counsel are generally reserved for
defendants in criminal cases because a person has the right to the effective assistance
of counsel when he or she faces criminal charges. See Strickland v. Washington,
466 U.S. 668, 685–86 (1984) (recognizing that the right to counsel under the Sixth
Amendment of the United States Constitution is the right to the effective assistance
of counsel). The Supreme Court of Texas has extended the right to the effective
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assistance of counsel to certain parental-rights termination cases: “We hold that the
statutory right to counsel in parental-rights termination cases embodies the right to
effective counsel.” In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). The right is also
afforded to the subject of an involuntary civil commitment hearing. Chrisman v.
Chrisman, 296 S.W.3d 706, 707 (Tex. App.—El Paso 2009, no pet.). However, the
doctrine of ineffective assistance of counsel does not apply to civil cases in which
there is no constitutional or statutory right to counsel, such as divorce cases.
Culver v. Culver, 360 S.W.3d 526, 535 (Tex. App.—Texarkana 2011, no pet.) (op.
on reh’g); see Chrisman, 296 S.W.3d at 707 (“No Texas court has determined that a
petitioner or respondent in a dissolution proceeding has the constitutional right to
effective assistance of counsel and we decline to do so.”); see also Cojocar v.
Cojocar, No. 03-14-00422-CV, 2016 WL 3390893, at *7 (Tex. App.—Austin
June 16, 2016, no pet.) (mem. op.) (citing to several cases from 2005 to 2013 for the
proposition that the right to effective assistance of counsel does not extend to divorce
cases). Therefore, we overrule Appellant’s first issue.
In her second issue, Appellant challenges the sufficiency of the evidence to
support the trial court’s custody determination. Specifically, she alleges that there
was no proof of abuse or neglect of the children, that there was no history of drugs
or alcohol, and that she had no criminal activity. She further claims that she has
never been absent from her child’s life and that both she and her husband were
verbally and physically abusive but that the abuse was directed only toward each
other. Appellant also asserts that her oldest daughter’s testimony should be
disregarded because it was motivated by Appellee’s money.
We review a trial court’s custody determination under an abuse of discretion
standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court
abuses its discretion when it acts in an arbitrary or unreasonable manner without
reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc.,
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701 S.W.2d 238, 241–42 (Tex. 1985). Under an abuse of discretion standard,
challenges to the sufficiency of the evidence are not independent grounds of error
but are relevant factors in assessing whether the trial court abused its discretion.
Child v. Leverton, 210 S.W.3d 694, 695–96 (Tex. App.—Eastland 2006, no pet.)
(citing In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied)
(op. on reh’g)). The traditional sufficiency standards of review overlap the abuse of
discretion standard; thus, we apply a two-prong analysis: (1) whether the trial court
had sufficient information upon which to exercise its discretion and (2) whether the
trial court erred when it applied that discretion. Id. at 696 (citing T.D.C., 91 S.W.3d
at 872). The traditional sufficiency review comes into play with regard to the first
question. Id. (citing T.D.C., 91 S.W.3d at 872). If we find that there is sufficient
evidence, we next determine whether, based on that evidence, the trial court made a
reasonable decision. Id. (citing T.D.C., 91 S.W.3d at 872).
In considering a legal sufficiency challenge, we review all the evidence in the
light most favorable to the trial court’s judgment and indulge every reasonable
inference in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
We credit any favorable evidence if a reasonable factfinder could and disregard any
contrary evidence unless a reasonable factfinder could not. Id. at 821–22, 827. In
reviewing a factual sufficiency challenge, we consider all the evidence and uphold
the finding unless it is so against the overwhelming weight of the evidence as to be
clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The best interest of the child is the primary consideration in determining issues
of conservatorship. TEX. FAM. CODE ANN. § 153.002 (West 2014); In re V.L.K., 24
S.W.3d 338, 342 (Tex. 2000). We review a trial court’s best interest finding by using
the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These non-exhaustive factors include the following: (1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future; (3) the
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emotional and physical danger to the child now and in the future; (4) the parental
abilities of the individuals seeking custody; (5) the programs available to assist these
individuals to promote the best interest of the child; (6) the plans for the child by
these individuals; (7) the stability of the home; (8) the acts or omissions of the parent
that may indicate that the existing parent-child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent. Id.
At the end of the bench trial, the trial court found that it was in the best interest
of A.B. for Appellant and Appellee to be joint managing conservators, with Appellee
as the primary caretaker. The trial court did not enter written findings of fact or
conclusions of law. In the final decree of divorce, the trial court appointed Appellant
and Appellee as joint managing conservators of A.B. and appointed Appellee as the
conservator with the exclusive right to designate the primary residence of the child.
When the trial court does not enter findings of fact and conclusions of law, we
presume that it made all the necessary findings to support its judgment as long as the
record supports such findings. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990); Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986). Here, our review of the
evidence shows that the record supports such implied findings.
Appellant and Appellee had three children together: Sara Baca, Kelby Baca,
and A.B. Sara, who was twenty-three years old at the time of the final hearing and
was the parties’ oldest daughter, testified that she believed it was best for A.B., the
parties’ youngest daughter, to live with Appellee. Sara testified that Appellant was
neglectful in caring for A.B. in that she failed to treat A.B. for lice, did not regularly
assist A.B. with her school work, and did not keep the house clean. Sara also
testified that Appellant had been violent on many occasions. She explained that, on
one occasion, Appellant beat through Kelby’s door with a hammer and threatened
to hurt Kelby if Kelby called the police. A picture of the damage to the door was
admitted into evidence. Sara further testified that Appellant “becomes belligerent
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and doesn’t stop for hours.” Sara also testified that Appellant made “bad” comments
to A.B. about Appellee and that those were not the types of things that a child should
hear. Sara estimated that Appellant was physically or verbally violent “[p]robably
once a week, at times, every other day.” On cross-examination, she clarified that
Appellant had never beaten her or her two sisters but that she had repeatedly
assaulted Appellee. Appellee had also hit Appellant on multiple occasions. At the
time of the final hearing, Sara did not have a relationship with her mother and
explained that she was testifying so that her sister would not have to live in such an
environment.
Kelby, who was twenty-one years old at the time of the final hearing, testified
that Appellant was both physically and verbally abusive to her. In addition to the
incident in which Appellant beat down her door, Kelby testified that Appellant
shoved her in the hallway when she was trying to get by Appellant to leave with
Appellee. She also explained that, on one occasion, she called the police to report
Appellant because Appellant was being violent and because she was afraid of what
Appellant would do to her. When Appellant and Appellee were violent toward each
other, Appellant was the one that “mostly” started it, both verbally and physically.
Appellant also said bad things about Appellee and called Appellee vile names in
front of A.B. The verbal abuse was not limited to private settings; it also occurred
in public. Kelby believed that Appellant had trouble controlling herself. Generally,
the arguments were based on Appellant’s accusations that Appellee was looking at
other women.
Kelby further testified that Appellant was a full-time housewife but that she
did not keep the house in good condition. Kelby identified a picture of A.B.’s
bedroom that depicted her bedroom in disarray. Kelby explained that A.B.’s room
does not look like that anymore and that both A.B.’s bedroom and playroom were
kept in good order. Since Appellant and Appellee separated, Kelby had been living
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with Appellee and A.B. She explained that the environment was “much better” and
“more peaceful” and that she and A.B. were happier. At the time of the final hearing,
Kelby testified that she too did not have a relationship with her mother and explained
that she was testifying so that A.B. would not have to “go through the violence that
happened between [her] parents.”
Appellee also testified about Appellant’s acts of violence. He identified a
picture that showed dents on the door of his pickup from where Appellant beat his
pickup with a shovel. Appellee also offered, and the trial court admitted, several
text messages and e-mails from Appellant to Appellee. Appellee testified that those
messages were the typical type of communications that he received from Appellant.
In the messages, Appellant called Appellee many derogatory names, such as
“whore,” “pervert,” “slut,” “little flirty b---h whore,” “limp d--k,” “a--hole,” and
“retarded whore brainless elephant man.” Appellee admitted that he hit Appellant
on a couple of occasions. He did not agree that he looked at other women
inappropriately. He testified that Appellant was overly jealous and that he had never
had an affair.
Appellant testified that Appellee sent her a lot of messages with foul language
as well. She provided one text message in which Appellee called Appellant “f-----g
dumb a--” and “stupid a--.” She further testified that she did not tell A.B. anything
bad about Appellee; “[A.B.] can see by herself.” Appellant said that, when she and
Appellee lived together, Appellee would drink a “sixpack” of beer several times a
week and would get belligerent. They would then get into an argument, and he
would become physically violent. He shoved her against the cabinets and called her
names. She explained that they also got into arguments because he was a
“womanizer” and flirted with women everywhere they went. She admitted that she
hit her husband’s pickup with a shovel. She explained that she became angry
because he was flirting with a girl down the street.
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Appellant believed that A.B. should live with her because A.B. was
accustomed to Appellant taking care of her; she was the caregiver of the house. She
did not believe that Appellee was capable of taking care of A.B. because he was
always at work. Appellee worked full time and was usually gone from 7:00 a.m.
until 5:00 p.m. Sometimes he worked late and did not get home until 8:00 p.m. At
the time of the hearing, he was also working on Saturdays and Sundays. She
explained that Appellee would leave A.B. alone with Kelby but that Kelby would
not pay attention to A.B. Appellant further explained that Kelby was mildly autistic
and antisocial, so she locked herself in her room a lot.
Appellant also testified that A.B. was not getting home-cooked meals at
Appellee’s house and that, instead, Appellee was giving A.B. frozen food or food
from restaurants. Appellant previously cooked seven nights a week for her family.
Appellant explained that the picture that showed that A.B.’s room was messy was
from “one of the times that [A.B.] was in there playing and never put[] anything
back.” Appellant would have to go in there and help her clean after she made a
mess; A.B. was seven or eight at the time the picture was taken. Appellant testified
that it was not true that she did not help A.B. with her homework. Kelby also
testified that, “[o]verall,” Appellant was involved in A.B.’s schooling.
Appellant further believed that Appellee should not be the one in charge of
A.B. because A.B. was very sad that Appellant was not there. When A.B. called
Appellant, she was “almost at the point of crying.” Appellant believed that A.B. was
very lonely at Appellee’s house. When Appellant dropped A.B. off at school on
Monday mornings, A.B. cried and did not want to get out of the car. Appellant
testified that A.B. was happy when she was with Appellant and that A.B. did not
want to leave her. Appellant also explained that A.B. should stay with her because
Appellee had the support of their two older daughters and because, if Appellant did
not have A.B. anymore, she would be left with no children.
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Appellant testified that she did not take any responsibility for the failed
relationships with her two oldest daughters. She did not know why they had bad
relationships but thought that it was possibly due to the children not wanting to make
their father angry because he bought them cars and paid their bills. She explained
that she broke down the door to Kelby’s room because she was afraid for her
daughter’s well-being; Appellant never touched her or hit her. Her daughter had
locked herself in her room, and Appellant was afraid that she might hurt herself.
When Sara and Kelby were asked if Kelby had ever threatened to commit suicide,
they both testified that Kelby had not.
We hold that the evidence in this case was both legally and factually sufficient
to support the trial court’s custody determination. Thus, the trial court had sufficient
information upon which to exercise its discretion. See Leverton, 210 S.W.3d at 696
(citing T.D.C., 91 S.W.3d at 872). The evidence presented at trial touched on four
of the Holley factors: the emotional and physical danger to the child now and in the
future, the stability of the home, the acts or omissions of the parent that may indicate
that the existing parent–child relationship is not a proper one, and any excuse for the
acts or omissions of the parent. See Holley, 544 S.W.2d at 371–72. Although
Appellant testified that she believed that A.B. should live with her for a number of
reasons, Appellee and the parties’ two oldest daughters testified that they believed
that A.B. should live with Appellee. They also testified that Appellant was violent
and that she started the arguments with Appellee. Sara and Kelby further testified
that they did not have a relationship with their mother and did not want A.B. to have
to grow up in the same environment that they did. Appellant offered several excuses
during her testimony as to why she behaved the way that she did and as to why she
did not have a good relationship with her oldest daughters.
The trial court, as the factfinder, was the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Golden Eagle Archery, Inc. v.
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Jackson, 116 S.W.3d 757, 761 (Tex. 2003); McGalliard v. Kuhlmann, 722 S.W.2d
694, 697 (Tex. 1986); Wright v. Wright, 280 S.W.3d 901, 908 (Tex. App.—Eastland
2009, no pet.). Based on the evidence before it, the trial court could have disregarded
Appellant’s testimony and believed the testimony of Appellee, Sara, and Kelby. We
cannot say that the trial court made an unreasonable decision when it appointed
Appellee as the conservator with the exclusive right to designate the primary
residence of A.B. See Leverton, 210 S.W.3d at 696 (citing T.D.C., 91 S.W.3d at
872). Therefore, the trial court did not abuse its discretion. We overrule Appellant’s
second issue.
Appellant also challenges the trial court’s failure to order Appellee to pay her
spousal maintenance. She asserts that she cannot earn a sufficient income, at the
minimum wage rate, to provide for her minimum reasonable needs. Appellee
responds that, as a result of the trial court’s property division, Appellant had
sufficient cash funds to meet her reasonable needs and that Appellant failed to rebut
the presumption that spousal maintenance was unwarranted under the circumstances
of this case.
A trial court may award spousal maintenance to a spouse of a marriage that
has lasted ten years or more if the party seeking maintenance lacks sufficient
property to provide for her minimum reasonable needs and lacks the ability to earn
sufficient income to provide for her minimum reasonable needs. FAM. § 8.051(2)(B)
(West Supp. 2016). It is a rebuttable presumption that spousal maintenance is not
warranted under Section 8.051(2)(B) unless, during the parties’ separation and the
pendency of the divorce proceeding, the spouse who seeks maintenance has
exercised diligence in earning sufficient income to provide for her minimum
reasonable needs or has exercised diligence in developing the necessary skills to
provide for her minimum reasonable needs. Id. § 8.053. The trial court may consider
the liquidity of the assets awarded to the party in the division of the marital property
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when the court considers whether the party has sufficient property to provide for her
needs. See, e.g., In re McFarland, 176 S.W.3d 650, 658 (Tex. App.—Texarkana
2005, no pet.) (outlining several cases that have considered the amount of property
awarded in the divorce proceeding when determining whether to award spousal
maintenance).
Here, the trial court awarded Appellant $123,049 in cash as part of the just
and right division of the marital property. The trial court specifically stated, at the
conclusion of the bench trial, that it appeared that “the cash that would be left over
. . . would take care of minimal needs with even a limited job, such as [Appellant]
has, at this time.” The trial court further stated, “So it pretty well takes out my
awarding the request that has been made for continued support payments for nursing
school.” In addition to the sum of cash, the trial court awarded Appellant one-half
of a $57,400 certificate of deposit, one-half of a $95,000 annuity, a $7,400 IRA, her
2010 BMW 528; household furnishings, personal effects, and the funds in
Appellant’s personal checking account, which had dwindled from over $18,000 to
approximately $150 during the parties’ separation.
Appellant testified that she did not work for months after the separation but
that she later found a part-time job at Ross. At the time of the hearing, she was
working twenty-five hours a week at a rate of $10.50 per hour; she did not have any
other source of income. Appellant testified that there was only $150 remaining in
her checking account and $200 in her savings account. She explained that she had
to spend the money in her checking account on attorneys. When asked whether she
sought other employment during the fifteen-month separation, Appellant responded,
“Yes, sir. Nobody is willing to hire a person without experience.” Appellant did
not present any evidence regarding the extent of her employment search. She simply
explained that she had applied online and was “constantly looking.”
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Appellant was a homemaker throughout the parties’ marriage, and she did
not graduate from high school. Appellant testified that she took home $200 a week
and that, if the court ordered her to pay $200 a month in child support, she would be
left with $600 a month. She testified that she was “homeless” and that she was afraid
that she was “going to end up without a house.” She knew she could not make it on
$600 a month, and she hoped that she could go to nursing school so that she could
make more money in the future. Appellant wanted the trial court to order Appellee
to pay Appellant twenty percent of Appellee’s gross salary for three years to help
her pay for school. However, Appellant agreed that she could meet her needs if she
received $167,000 as part of the division of the community property estate.
We agree that Appellant failed to establish by a preponderance of the evidence
that she exercised diligence in earning sufficient income and in developing the skills
necessary to provide for her minimum needs while the parties were separated.
Appellant did not present any evidence that showed that she attempted to find
employment that would offer a higher income or would allow her to work more
hours. She also did not present any evidence that she tried to develop any skills that
would further her chances to secure employment that would provide for her
reasonable minimum needs. Although she testified that she wanted to go to nursing
school, she did not pursue nursing school during the parties’ fifteen-month
separation.
Furthermore, the record shows that the trial court ordered Appellee to pay
temporary spousal support in the amount of $1,000 per month for over one year. In
addition to the temporary spousal support, the trial court ordered Appellee to pay the
household bills and mortgage associated with the marital home, the usual and
customary gasoline requirements of Appellant, the rent on an apartment for
Appellant, the deposits and utility bills for Appellant’s apartment, and the debts on
the automobiles of the family. Even after the trial court had ordered that Appellee
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did not have to continue to pay spousal support to Appellant and did not have to
continue to pay several of Appellant’s bills, Appellee chose to continue to pay for
Appellant’s BMW so that he could pay the loan off in full. Appellee also testified
that Appellant withdrew all of the money out of their joint checking account at the
time that they separated. He did not know what that money went toward; the sum
of money withdrawn was $15,379.86. Appellant testified that she withdrew that
money to pay her attorneys and to buy a washer and dryer, some furniture, a mattress,
a microwave, and other items for her apartment.
Based on Appellant’s failure to rebut the presumption in Section 8.053 and
based on the amount of spousal support that Appellant received during the separation
as well as the amount of property she received in the division of the marital estate,
we cannot say that the trial court abused its discretion when it denied Appellant’s
request for spousal maintenance. Therefore, we overrule Appellant’s third issue.
In Appellant’s final issue, she asserts that Appellee was obligated to pay her
rehabilitation alimony. We first note that we have not found where in the record
Appellant sought relief for “rehabilitation alimony.” In her counterpetition,
Appellant sought “postdivorce maintenance for a reasonable period in accordance
with chapter 8 of the Texas Family Code,” and she also sought temporary support
from Appellee until the trial court entered a final decree of divorce. However, she
did not seek rehabilitation alimony. Moreover, the Family Code does not authorize
a trial court to award this type of relief to a party in a divorce proceeding in Texas.
The relief allowed in Texas for support after a divorce is spousal maintenance. See
FAM. § 8.051 (allowing for the award of spousal maintenance under certain
circumstances). “Alimony” may only be ordered if the parties have entered into a
contract in which one party has agreed to pay the other party alimony. Francis v.
Francis, 412 S.W.2d 29, 32–33 (Tex. 1967); McCollough v. McCollough, 212
S.W.3d 638, 642–46 (Tex. App.—Austin 2006, no pet.). There is no evidence of
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such a contract in this case, and we have already disposed of Appellant’s complaint
that the trial court erred when it failed to award her spousal maintenance. Therefore,
Appellant’s fourth issue is overruled.
We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
August 25, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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