Fili Giovanni Chacon v. Cassidy Christine Gribble ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00737-CV
Fili Giovanni Chacon, Appellant
v.
Cassidy Christine Gribble, Appellee1
FROM THE 27TH DISTRICT COURT OF BELL COUNTY
NO. 287,779-A, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
Fili Giovanni Chacon (Father) appeals from the trial court’s final order
adjudicating that he is the father of J.L.C.; appointing him and Cassidy Christine Gribble
(Mother) joint managing conservators; and granting Mother the exclusive right to determine the
child’s primary residence within Bell County, contiguous counties, and Travis County. Because
we conclude that the trial court abused its discretion in designating Mother as the conservator
with the exclusive right to determine J.L.C.’s primary residence, we will reverse those portions
of the trial court’s order relating to conservatorship, possession, and child support and remand
the cause for further proceedings.
1
This case was originally styled “In the Interest of J.L.C.”
BACKGROUND
J.L.C. was born on June 5, 2016, and in September 2016, the Attorney General of
Texas filed a petition to establish the parent-child relationship. The petition alleged that Mother’s
then-husband and J.L.C.’s presumed father was not her biological father and that Father, with
whom Mother had an extra-marital relationship, was the child’s biological father. The trial court
ordered parentage testing, which determined, to a high degree of certainty, that Father is J.L.C.’s
biological father. Father subsequently filed a counter-petition stating that he is J.L.C.’s father
and requesting that he be appointed sole managing conservator with the exclusive right to
determine the child’s primary residence without regard to geographic location.
A final hearing began April 11, 2018, and continued May 7, 2018. At the hearing,
the trial court heard testimony from Father, Mother, Father’s mother, Mother’s maternal
grandmother, and several of Mother’s friends. At the conclusion of the hearing, the trial court
informed the parties that it would take the matter under advisement. On June 2, 2018, the trial
court signed an order that, among other things, appointed Father and Mother joint managing
conservators and granted Mother the exclusive right to determine J.L.C.’s primary residence. In
two issues on appeal, Father challenges the trial court’s final order.2
DISCUSSION
Standard of Review
We review a trial court’s decisions on conservatorship for an abuse of
discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); R.H. v. D.A., No. 03-16-00442-CV,
2017 WL 875317, at *3 (Tex. App.—Austin Mar. 2, 2017, pet. dism’d) (mem. op.). A trial court
2
Mother was not represented by counsel in the trial court or on appeal. In addition, she
has not filed a brief in this appeal.
2
abuses its discretion when it acts in an arbitrary or unreasonable manner, or when it acts without
reference to any guiding rules or principles. Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex.
App.—Austin 2014, no pet.); Barndt v. Barndt, No. 03-17-00796-CV, 2019 WL 1746995, at *3
(Tex. App.—Austin Apr. 19, 2019, no pet.) (mem. op.).
In family law cases, the abuse-of-discretion standard overlaps with traditional
sufficiency standards of review. Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.—Austin
2006, pet. denied). Consequently, challenges to legal and factual sufficiency do not constitute
independent grounds for asserting error but are relevant factors in determining whether the trial
court abused its discretion. Coburn, 433 S.W.3d at 823; In re Marriage of C.A.S., 405 S.W.3d 373,
382 (Tex. App.—Dallas 2013, no pet.). In applying the standard, we engage in a two-pronged
inquiry: (1) whether the trial court had sufficient information upon which to exercise its
discretion; and (2) if so, whether the trial court erred in that application. Zeifman, 212 S.W.3d
at 588. Under the first inquiry, we apply traditional sufficiency standards of review. Id. Under
the second inquiry, we must decide whether, based on the evidence before it, the trial court made
a reasonable decision. Id.
When, as here, the trial court does not issue findings of fact and conclusions of
law, “all facts necessary to support the trial court’s ruling and supported by the evidence are
implied in favor of the trial court’s decision.” Id. “But when the appellate record includes both
the reporter’s record and the clerk’s record, as it does here, the implied findings are not
conclusive and may be challenged for legal and factual sufficiency.” Id. In reviewing a trial
court’s finding for legal sufficiency, we consider the evidence in the light most favorable to
the verdict crediting favorable evidence if a reasonable fact-finder could have done so and
disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson,
3
168 S.W.3d 802, 827 (Tex. 2005). When reviewing for factual sufficiency, we consider all the
evidence in the record and will set aside a finding only if the supporting evidence is so weak, or
so contrary to the overwhelming weight of all the evidence, as to make the finding clearly wrong
and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); City of Austin v. Chandler,
428 S.W.3d 398, 407 (Tex. App.—Austin 2014, no pet.).
When reviewing a trial court’s conservatorship decision, we are mindful that
conservatorship determinations are “intensely fact driven,” Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.
2002), and that the trial court is in the best position “to observe the demeanor and personalities of
the witnesses and [to] ‘feel’ the forces, powers, and influences that cannot be discerned merely
from reading the record,” Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no
pet.). The fact that we might decide the issue differently than the trial court does not establish an
abuse of discretion. Zeifman, 212 S.W.3d at 587. “An abuse of discretion does not occur as long
as some evidence of a substantive and probative character exists to support the trial court’s
decision.” Id.
Joint Managing Conservatorship
In his first appellate issue, Father contends that the trial court’s decision to
appoint Mother as a joint managing conservator violates Section 153.004 of the Texas Family
Code and, consequently, constitutes an abuse of discretion.
“The best interest of the child shall always be the primary consideration of the
court in determining the issues of conservatorship and possession of and access to the child.”
Tex. Fam. Code § 153.002. Ordinarily, there is a presumption that it is in the child’s best interest
for the court to appoint both parents as joint managing conservators. See id. § 153.131(b). A
4
finding of a history or pattern of family violence involving the parents of a child removes the
presumption. Id. “Family violence” is an act that is intended to result in physical harm, bodily
injury, assault, or sexual assault, or that is a threat that reasonably placed the family member in
fear of imminent physical harm, bodily injury assault, or sexual assault, but does not include
defensive measures to protect oneself. Id. § 71.004; see also id. § 71.003 (defining “family” to
include “individuals who are the parents of the same child”).
In addition, Section 153.004 of the Family Code sets out specific requirements for
determining conservatorship in cases where there is evidence of domestic violence or sexual
abuse. See id. § 153.004 (entitled “History of Domestic Violence or Sexual Abuse”). First,
subsection (a) provides that when determining conservatorship, the trial court must consider any
evidence of physical or sexual abuse “by a party directed against the party’s spouse, a parent of
the child, or any person younger than 18 years of age committed within a two-year period
preceding the filing of the suit or during the pendency of the suit.” Id. § 153.004(a). As applicable
to Father’s arguments, subsection (b) states:
The court may not appoint joint managing conservators if credible evidence is
presented of a history or pattern of past or present child neglect, or physical or
sexual abuse by one parent directed against the other parent, a spouse, or a child,
including a sexual assault in violation of Section 22.11 or 22.021, Penal Code,
that results in the other parent becoming pregnant with the child.
Id. § 153.004(b) (emphasis added). In addition,
It is a rebuttable presumption that the appointment of a parent as the sole
managing conservator of a child or as the conservator who has the exclusive right
to determine the primary residence of a child is not in the best interest of the child
if credible evidence is presented of a history or pattern of past or present child
neglect, or physical or sexual abuse by that parent directed against the other
parent, a spouse, or a child.
5
Id. (emphasis added).
On appeal Father contends that based on the evidence presented at the final
hearing, the trial court was prohibited by Section 153.004 from appointing Mother a joint
managing conservator and that the court instead was required to appoint him sole managing
conservator of J.L.C. At the final hearing, Mother was questioned about her recent arrests for
assault. In response to questions by Father’s counsel, Mother acknowledged that she had been
arrested in December 2017 for assaulting Father and that she had spent six weeks in jail because
she “had no bond.” Mother explained that she pleaded guilty to the assault charge against Father
and that she received a conviction with an affirmative finding of family violence. Father contends
that this record establishes as a matter of law that credible evidence was presented of a “history”
of physical abuse by Mother against Father. See id.
It cannot be disputed that the commission of assault family violence under the
Texas Penal Code constitutes “physical abuse” under Section 153.004. See Tex. Penal Code
§ 22.01(a)(1) (providing that assault is committed when person “intentionally, knowingly, or
recklessly causes bodily injury to another”), (b)(2) (specifying that assault under Section
22.01(a)(1) is third-degree felony when committed against person with relationship to defendant
under certain provisions of Family Code, including Section 71.003); see also Tex. Fam. Code
§ 71.004(1) (definition of “family violence”). Therefore, whether Mother’s assault conviction
constitutes a “history or pattern” of physical abuse under Section 153.004 turns on the meaning
of the term “history” and, more specifically, on whether a single incident of physical abuse
constitutes a “history.”
Because the term “history” is not defined in the Family Code, we give the
term its ordinary meaning. See Tex. Gov’t Code § 311.011; Greater Hous. P’ship v. Paxton,
6
468 S.W.3d 51, 58 (Tex. 2015) (explaining that “[u]ndefined terms in a statute are typically
given their ordinary meaning”). The term “history” is often defined as “events that form the
subject matter of a history” or “events of the past.” In re Marriage of Stein, 153 S.W.3d 485,
489 (Tex. App.—Amarillo 2004, no pet.) (citing Merriam-Webster’s Collegiate Dictionary 549
(10th ed. 2000)). Similarly, “history” can be “an eventful past” or “a whole series of past
events connected with a particular person or thing.” See C.C. v. L.C., No. 02-18-00425-CV,
2019 WL 2865294, at *14 (Tex. App.—Fort Worth July 3, 2019, no pet.) (mem. op.) (citing
lexico.com/en/definition/history). Based on these definitions, the term “history,” in common
usage, primarily refers to a series of past events rather than an isolated incident. Id. at *16.
The common meaning of “history” is not limited, however, to multiple events
and may, in certain contexts, refer to a singular event. “History” is also defined as “a past
characterized by a particular thing,” “an account of a patient’s medical background,” and “an
established record.” See id. at *14; Merriam-Webster’s Collegiate Dictionary 549 (10th ed.
2000) (defining “history”). In this context, “history” may refer to a single thing or incident when
the nature of the thing or incident is such that it characterizes a past. For example, a person may
have a “criminal history” as a result of a singular crime, such as an arrest for homicide, or have a
“history of mental illness” as a result of a singular diagnosis, such as schizophrenia. Applying this
definition to Section 153.004, we conclude that a single act of violence or abuse may, although
not always, amount to a “history” of physical abuse. See Baker v. Baker, 469 S.W.3d 269, 274
(Tex. App.—Houston [14th Dist.] 2015, no pet.) (“Section 153.004(b) indicates that a history
can be established by just a single incident.”); Alexander v. Rogers, 247 S.W.3d 757, 762 (Tex.
App.—Dallas 2008, no pet.) (noting that “[o]ne incident of physical violence can constitute a
history of physical abuse”); In re Marriage of Stein, 153 S.W.3d at 489 (noting that “a single act
7
of violence or abuse . . . can amount to a history of physical abuse” and stating that “because the
acts of physical abuse were either conceded by the parties or revealed by other uncontradicted
testimony at trial, as a matter of law credible evidence was presented of a history of physical
abuse by one parent against the other parent”).
In addition, construing “history” such that one or more incidents may form a
“history” is consistent with and gives effect to those provisions in the statute that require
consideration of a single incident. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,
439 (Tex. 2011) (“We presume that the Legislature chooses a statute’s language with care,
including each word chosen for a purpose, while purposefully omitting words not chosen.”). In
other provisions in Section 153.004, the Legislature has required the trial courts to consider
whether there has been abuse without referencing a “history or pattern.” For example, subsection
(c) states,
The court shall consider the commission of family violence 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.
Tex. Fam. Code § 153.004(c). Under this subsection, the Legislature has made clear that a
trial court must consider even a single incident of abuse in deciding possessory rights. Had the
Legislature intended to draw a similar numerical distinction in subsection (b), it could have done
so by requiring credible evidence of an “act” or “incident” or, conversely, of “acts or incidents.”
Cf. In re T.G., No. 05-12-00460-CV, 2013 Tex. App. LEXIS 7508, at *24 (Tex. App.—Dallas
June 19, 2103, no pet.) (mem. op.) (“Had the Legislature [in Section 153.004(b)] intended that
one act would forever bar two parents from jointly managing their child, it could have said so.”).
By using the more generalized “history or pattern” language in subsection (b), the Legislature
8
has signaled that the trial court should determine whether a single incident, or even multiple
incidents, constitutes clear evidence of a “history or pattern” based on the particular facts
presented in each case. As a result, Section 153.004(b) gives “the trial court discretion to decide
whether there is such a history of abuse that the parents cannot act in a joint parenting role.”
C.C., 2019 WL 2865294, at *16; see also Long v. Long, No. 03-97-00073-CV, 1997 WL 722704,
at *2 (Tex. App.—Austin Nov. 20, 1997, no pet.) (not designated for publication) (concluding
that under ordinary meaning of “history or pattern,” instances of contact raised by appellant’s
testimony, even if accepted as true, did not “conclusively prove a history or pattern of abuse”
and that “[t]he trial judge could have reasonably concluded that there was not a history or pattern
of abuse”).
In this case, the trial court impliedly found that there was not a “history or pattern
of past or present child neglect, or physical or sexual abuse” that would prevent Mother and
Father as acting as joint managing conservators. See Tex. Fam. Code § 153.004(b). As previously
discussed, Mother testified that she had been arrested and convicted for committing assault
against Father and that she received a finding of family violence. Mother did not, however,
provide any additional details about the events leading to her arrest, and she was not questioned
further about the incident. Similarly, Father was not asked and did not testify about the assault
by Mother against him. As a result, no evidence was presented concerning the underlying facts
or events leading to Mother’s arrest. We cannot conclude that Mother’s arrest and conviction for
assault family violence, standing alone, mandates a finding that there exists “such a history of
abuse that the parents cannot act in a joint parenting role.” See C.C., 2019 WL 2865294, at *16;
see also Long, 1997 WL 722704, at *2. Consequently, based on the record before us, we cannot
9
conclude that the trial court abused its discretion in appointing Father and Mother joint managing
conservators. See Tex. Fam. Code § 153.004(b). Father’s first issue on appeal is overruled.
Exclusive Right to Establish Primary Residence
In his second issue on appeal, Father contends that the trial court abused its
discretion in appointing Mother as the joint conservator with the right to establish J.L.C.’s
primary residence. Father argues that the evidence is legally and factually insufficient to support
the trial court’s conclusion that the designation is in J.L.C.’s best interest and that the trial court
should have instead appointed him the conservator with the right to establish the child’s primary
residence without geographical restriction.
When the trial court appoints joint managing conservators, it must designate the
conservator who has the right to determine the primary residence of the child. Id. § 153.134. As
with all “issues of conservatorship,” the primary consideration for the trial court in deciding who
should have this exclusive right is the best interest of the child. Id. § 153.002. Trial courts
generally have wide discretion in determining what is in the child’s best interest, see Gillespie v.
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982), and may use a non-exhaustive list of factors to aid
in the determination, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors
include (1) the child’s desires; (2) the emotional and physical needs of the child now and in the
future; (3) the emotional and physical danger to the child now and in the future; (4) the parental
abilities of the individuals seeking custody of the child; (5) the programs available to assist these
individuals to promote the best interest of the child; (6) plans for the child by the parties seeking
custody; (7) the stability of the proposed placement; (8) the parent’s acts or omissions that may
indicate that the parent-child relationship is not proper; and (9) any excuse for the acts or
10
omissions of the parent. Id. Proof of best interest is not limited to these factors, and no single
factor is controlling. See Clemons v. Lynn, No. 03-16-00360-CV, 2017 Tex. App. LEXIS 2371,
at *5-6 (Tex. App.—Austin Mar. 22, 2017, no pet.) (mem. op.) (citing M.C. v. Texas Dep’t of
Family & Protective Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet. denied)). In
addition, not all factors apply in every case, and the presence of a single factor may, in some
instances, be adequate to support a best-interest finding. M.C., 300 S.W.3d at 311.
The evidence presented at the final hearing established that J.L.C. has been living
with Father in California since December 28, 2017, when Mother was arrested and jailed for
assault against him. Father has been an automotive technician for two-and-a-half years and has
been doing the same type of work for ten years. J.L.C. has healthcare, dental, and vision insurance
through Father’s wife, who is on active duty in the military. J.L.C. is “enrolled fully in day-care”
and has “one baby-sitter.” Father testified that J.L.C. eats dinner with him and his wife every
night; “has her own room, crib”; and “sleeps in the same area” and is “around the same
people every day.” Father testified that J.L.C. is “very happy,” “plays very well now with her
[step]brother and her [step]sister,” and “is learning a lot more.”
Father told the trial court that he did not think Mother could provide a stable
home for J.L.C. because she has had five residences in the past eighteen months and because
J.L.C. was staying “with different people all the time.” Father also expressed concern about
Mother’s care of J.L.C., explaining that J.L.C. was not current on her immunizations when J.L.C.
came to live with him in California and that J.L.C. has sustained injuries, such as ant bites,
bruises, and cuts on her finger from fingernail clippers, while in Mother’s care. Finally, Father
testified that Mother sent him text messages and pictures telling him that her former husband
(to whom she was married at the time of J.L.C.’s birth) was J.L.C.’s father and was “better”
11
than Father. Finally, Father told the court that he sometimes does not know where Mother and
J.L.C. are living and that, on at least two occasions, he requested time with J.L.C., and Mother
refused his request.
The evidence at the final hearing also established that J.L.C. resided in Texas with
Mother from the time J.L.C. was born until she was approximately eighteen months old, when
J.L.C. began residing with Father following Mother’s arrest. At the hearing, Mother testified
that she is in the process of divorcing from her husband, who has been physically abusive toward
her, and that she has had three residences in the past two years—first with her husband, then with
her maternal grandmother, and mostly recently with her mother. According to Mother, she and
J.L.C. have lived for the past year in Copperas Cove in a three-bedroom apartment with her
mother, her stepfather, and her sister. Mother testified that she works as a bartender from 7 p.m.
to 2 a.m., Wednesday through Saturday; that her mother watches J.L.C. while she is at work; and
that she does not own a car but is able to borrow her mother’s car whenever she needs one.
Mother acknowledged that a few months before the final hearing she was arrested for shoplifting
and then, a short time later, she was arrested again for assault against Father. Mother also admitted
that she was stopped by police in June 2017 for driving without insurance and that she drove
without insurance for approximately a month, but not with J.L.C. in the vehicle. Mother denied
that she has ever refused Father access to J.L.C. and, instead, claimed there have been occasions
when Father would miss his scheduled visits. Mother acknowledged that she has no reason to
dispute that Father has a stable job and stable home life but explained to the court that J.L.C.
should reside with her because she spends a lot of time with J.L.C., she has “done everything in
[her] power to make sure she was well taken care of,” and the child has always been happy and
healthy while in her care.
12
In addition, the trial court heard from Father’s mother, Socorro Ortega, and from
Mother’s maternal grandmother, Donna Caughron. First, Ortega testified that prior to Father
having possession of J.L.C., she would care for her four to five days a week so that Mother
would go to work. According to Ortega, J.L.C. was always clean and well fed when she received
the child from Mother. Ortega also testified that sometimes when Father was supposed to have
visitation with J.L.C., he would leave the child with her and “go out and party and hang out with
his friends.”
Next, Caughron testified that Mother and J.L.C. resided with her for a period of
time after Mother left her husband. According to Caughron, during this time Mother was “in and
out, in and out” and occasionally would not return home from work until 5 a.m. Caughron told
the court that when Mother returned from work this late, Caughron—and not Mother—would get
up to take care of J.L.C. Finally, Caughron testified that she believed Father could provide more
stability to J.L.C. and that the child’s current living situation in Copperas Cove with her daughter
(Mother’s mother) was not as stable. Caughron told the court that her son-in-law (Mother’s
stepfather, who lived in the home with Mother and J.L.C) had recently been released from prison
for “burglary and theft and whole lot of other charges.” Finally, the trial court heard from two
personal friends of Mother’s, both of whom testified that Mother was a good mother and that the
child was doing well while in Mother’s care.
Upon hearing the testimony presented, the trial court impliedly found that it was
in J.L.C.’s best interest to award Mother the exclusive right to determine J.L.C.’s primary
residence. There is at least some evidence that from the time of her birth until she was eighteen
months old, J.L.C. was primarily in Mother’s care and that during this time, the child’s physical
and emotional needs were met. The overwhelming evidence, however, establishes that Father can
13
meet J.L.C.’s physical and emotional needs and can provide the child with a safe, stable home,
which Mother currently cannot do. In addition, Mother did not present any evidence suggesting
that she would be able to provide J.L.C. with a safe, stable home in the near future. Considering
the entirety of the record, and applying the appropriate standards of review, we conclude that
although the trial court had legally-sufficient evidence on which to exercise its discretion, the
court did not have factually-sufficient evidence to support its best-interest determination. See
Cain, 709 S.W.2d at 175. Consequently, the trial court’s decision to appoint Mother as the
conservator with the exclusive right to designate J.L.C.’s primary residence was unreasonable
and an abuse of discretion. See Zeifman, 212 S.W.3d at 588; Echols, 85 S.W.3d at 477.
CONCLUSION
We reverse those portions of the trial court’s order relating to conservatorship,
possession, and child support, and we remand the cause to trial court for a new hearing.
____________________________________
Chari L. Kelly, Justice
Before Justices Goodwin, Baker, and Kelly
Reversed and Remanded
Filed: November 27, 2019
14