in the Matter of the Marriage of Kelley Walker and Catina Walker and in the Interest of Skylar Walker and Keely Walker, Children ( 2005 )

NO. 07-03-0531-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
DECEMBER 20, 2005
______________________________
IN THE MATTER OF THE MARRIAGE OF
KELLEY WALKER AND CATINA WALKER
AND IN THE INTEREST OF S.W. AND K.W., CHILDREN
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B32685-0303; HONORABLE ED SELF, JUDGE
_______________________________
Before REAVIS and CAMPBELL, JJ., and Boyd, S.J.1
MEMORANDUM OPINION
Appellant Catina Walker brings this appeal from a decree of divorce terminating her
marriage to appellee Kelley Walker. She does not challenge dissolution of the marriage
or division of the community estate but presents two issues assigning error to those
portions of the decree naming both parties joint managing conservators of their two minor
children and giving appellee the exclusive right to determine their primary residence.
Incorporating the applicable standard of review, appellant’s first issue asks whether the trial
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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
court abused its discretion by determining that naming appellee joint managing conservator
with the exclusive right to determine the residency of the children was in the children’s best
interest. Her second issue is a recasting of the same question. We affirm.
Evidence showed the parties were married in January 1990. The couple’s first child
was born in 1996 and their second child in 1998. In 2003 appellee was employed as a
security guard working 12 hour shifts beginning at 5 a.m. three days a week. Appellant
was employed as a nurse at a state prison. She worked from 5 a.m. to 2 p.m. five days
a week. Appellant’s mother, Patsy Hall, helped the couple care for the children.
In February 2003 appellant began visiting with a co-worker named Billy Havens. On
March 16, 2003 appellant left appellee and both children and moved in to live with Havens.
Appellee filed suit for divorce the following day. Appellant answered and filed a
counterclaim for divorce seeking to be named joint managing conservator with the right to
determine the children’s primary residence and seeking an award of child support. Two
or three months after the separation, Danna Thompson and her two sons moved in with
appellee.
At the final hearing the trial court heard testimony from the parties, Danna
Thompson, a friend and co-worker of appellee named Rodney Garcia, appellant’s brother
Chris Hall, and appellant’s mother Patsy Hall. Appellee testified about his relationship with
the children including his primary role in their care during the morning when appellant was
at work and his involvement with their other activities. He explained that if the children
lived with him, they would be able to stay in the same three-bedroom house where they
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had been living and he would be their primary caregiver four days a week. On the days
when he worked, Thompson and Patsy Hall would care for the children.
Danna Thompson testified she had two sons from a previous marriage, that she has
a good relationship with the parties’ children and would care for them when appellee was
not available. On cross-examination she admitted that her most recent prior relationship
was with a woman, with whom she had lived for two-and-a-half years, but with whom she
no longer associated. Rodney Garcia generally testified he often visited appellee at home
and observed a good relationship between appellee and the children. Appellant’s brother
Chris Hall believed appellee was a “great dad” and it would be in the children’s best interest
for appellee to be named “primary conservator” for them. He had not been to Billy Havens’
house and could not tell the court anything about the conditions there.
Appellant testified her decision to leave appellee was based on his alcohol abuse,
drug use and infidelity. She described appellee’s excessive alcohol use early in their
marriage including his arrest for driving while intoxicated on their wedding night.2 She also
alleged appellant used marijuana and amphetamine but believed he had stopped. She
described an incident in November 2002 when she found appellee sniffing starter fluid.
This event convinced her to leave appellee. Her testimony was the older child’s grades
went from straight As to “low Bs” while living with appellee under the court’s temporary
orders. She described an incident in which she had planned a birthday party for the
children. She invited appellee and Thompson, but she alleged appellee undermined this
2
This was his third, and final, arrest for that offense.
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effort by conducting another party for the children without including appellant. Appellant’s
plan for caring for the children if they lived with her was to take them to Patsy Hall’s home
before leaving for work before 5 a.m. and to be available to pick the children up when they
got out of school.
Patsy Hall testified she had cared for the children when neither parent was available
and would continue to do so. Her only explicit criticism of appellee concerned his alcohol
use. She did not allege that conduct posed a threat to the children. She agreed appellee
was a good father, and had a good relationship with the children. She also agreed in some
instances he interacted with them better than appellant, even better than she would. She
also agreed the care plan proposed by appellant would be very disruptive to the children.
After the trial court signed its final decree naming the parties joint managing
conservators and giving appellee the right to determine the children’s primary residence,
appellant requested findings of fact and conclusions of law. The court produced 62
findings of fact and 7 conclusions of law.
The Family Code establishes the best interest of the child as the primary
consideration when courts determine conservatorship of a child. Tex. Fam. Code Ann. §
153.002 (Vernon 2002). Section 153.134 authorizes a court to name both parents joint
managing conservators if it finds such a designation is in the best interest of the child. Tex.
Fam. Code Ann. § 153.134(a) (Vernon Supp. 2005). That statute lists six specific factors
in determining best interest, and directs courts to consider any other relevant factor. Id.
Several, but not all, of the listed factors correspond with those set out by our supreme court
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in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Although Holley involved
termination of parental rights, our courts have looked to the factors listed there in
determining the issue of best interest in other suits affecting the parent-child relationship.
See, e.g., In the interest of C.R.O. 96 S.W.3d 442, 451 (Tex.App.–Amarillo 2002, pet.
denied). Section 153.134(b) requires an order naming joint managing conservators to
designate one as having the exclusive right to determine the child’s primary residence, to
allocate other rights and responsibilities of the parents and to include provisions to
minimize disruption of the child’s education, daily routine and association with friends. Tex.
Fam. Code Ann. §153.134(b) (Vernon Supp. 2005).
Trial courts are afforded wide discretion in making determinations of custody
possession and visitation. In the interest of C.R.T., 61 S.W.3d 62, 65 (Tex.App.–Amarillo
2001, pet. denied) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982)). Abuse
of the court’s discretion is shown only when it acts without reference to any guiding rules
or acts arbitrarily or unreasonably. Id. Our review must also give deference to the trial
court because it is in the best position to observe the demeanor of the witnesses and
evaluate their credibility. In the interest of De la Pena, 999 S.W.2d 521, 526 (Tex.App.–El
Paso 1999, no pet.). An abuse of discretion ordinarily does not occur when the trial court
bases its decision on conflicting evidence. See In re K.R.P., 80 S.W.3d 669, 674
(Tex.App.–Houston [1st Dist.] 2002, pet. denied).
The gist of appellant’s argument is that the trial court ignored relevant evidence and
did not consider all the applicable factors for determining the best interest of the children
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set out in Holley. Appellant initially notes the trial court could not consider the first factor
set out in Holley, the desires of the children, because no evidence on their desires was
presented. We note, though, the trial court’s findings of fact include findings stating
appellee’s home is the only residence the children have known since their births, and
stating the children are happy in appellee’s home. Appellant does not dispute the evidence
supporting those findings. Moreover, both children here were under 12. Cf. Tex. Fam.
Code Ann. § 153.134(a)(6) (court shall consider the preference of a child 12 years of age
or older).
Appellant next argues the trial court did not consider the danger to the emotional or
physical well-being of the children from the presence of Danna Thompson’s sons or “if [the
children] were to discover their father drunk or high from sniffing starter fluid.” She offered
no evidence at trial of how the presence of Thompson’s sons, who were slightly older than
the parties’ children, would present any risk. The trial court’s findings of fact (45, 46)
accurately reflected the evidence concerning appellee’s alcohol use and show the court
considered that evidence. Appellant points to the absence of evidence of alcohol or drug
use at the Havens house. The court heard virtually no evidence about Havens. He did not
testify and, other than appellant, no witness said they had been to his house. As the trier
of fact the trial court was the exclusive judge of the credibility of the witnesses and weight
to be given their testimony. De la Pena, 999 S.W.2d at 526. The trier of fact may choose
to believe all, part or none of any witness’s testimony. In the interest of R.D.S., 902
S.W.2d 714, 916 (Tex.App.–Amarillo 1995, no writ). The findings of fact indicate the trial
court found credible appellant’s testimony concerning appellee’s alcohol use and
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considered that evidence. The omission of findings concerning drug use does not, as
appellant argues, indicate the trial court ignored that evidence. The court may have found
it not credible.
Appellant next discusses the parental abilities of the parties as a factor in
determining best interest. She attributes to Patsy Hall testimony that when the children
were in the care of appellee they went to school in unclean clothes. The reference to the
children going to school “dirty sometimes” was raised by appellant’s counsel. Patsy Hall
hesitantly agreed that may have happened but attributed it to her belief that “dads aren’t
quite as equipped as moms to take care of those things.” In contrast, of the six witnesses
the trial court heard, appellant was the only one who did not testify appellee had a good
relationship with the children and was a good caregiver. Those witnesses included
appellant’s mother and brother. Appellant’s brother expressly stated it would be in the best
interest of the children for them to live with appellee. The evidence supported a finding
appellee’s parental abilities were equal to, if different from, those of appellant.
Appellant asserts the importance of providing stability for the children weighs in
favor of placing the children with her. She is critical of the abilities of Danna Thompson to
“provide guidance” to the children due to her past relationships. Finding of fact 32 and 35
recited Thompson’s prior relationship indicating the court considered that evidence. The
findings of fact also reflected appellant’s conduct in leaving appellee and the children
without prior warning. There was no evidence Thompson or appellee had acted similarly.
The factors set out in section 153.134 do not address the possible influence of other adults
but does impose on a court a duty to minimize disruption to, inter alia, the child’s daily
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routine. § 153.134(b)(3). Appellant’s brief does not discuss the potential effects of her plan
for caring for the children on their daily routine. That plan would require awakening them
about 4 a.m. every school day to be taken to Patsy Hall’s home where they would stay until
leaving for school. Patsy Hall testified this would be very disruptive to the children. In
contrast, placement with appellee would be a continuation of the routine established during
the marriage.
The trial court’s extensive findings of fact affirmatively indicate it considered each
of the applicable factors discussed in Holley and most of the relevant factors listed in
section 153.134.3 Those findings of fact are supported by the record. Additionally, the
findings support the court’s conclusion of law that it is in the best interest of the children
to grant appellee the right to designate the primary residence of the children. We overrule
both of appellant’s issues and affirm the judgment of the trial court.
James T. Campbell
Justice
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The absence of a specific finding on the remaining factors does not show the trial
court did not consider those factors.
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