Vanessa Jane McKinney v. Kenneth Roy Davis, Jr. ( 2007 )

NUMBER 13-06-163-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

VANESSA JANE MCKINNEY, Appellant,

v.

KENNETH ROY DAVIS, JR., Appellee.

On appeal from the 36th District Court

of San Patricio County, Texas MEMORANDUM OPINION

Before Justices Yañez, Benavides and Vela

Memorandum Opinion by Justice Vela

   Appellant, Vanessa Jane McKinney and Appellee, Kenneth Roy Davis, Jr., petitioned the trial court to dissolve their informal marriage. Both Vanessa and Kenneth sought custody of their three-year-old daughter. The trial court granted the divorce, appointed both parents joint managing conservators, and ordered Kenneth Davis to be the primary managing conservator with the right to determine the child's residence. Vanessa urges in two issues that the evidence was insufficient to support the trial court's rulings and that the trial court abused its discretion in not granting her a new trial. We affirm.

I.

Background

Vanessa filed an original petition for divorce on September 20, 2005, seeking to be designated joint managing conservator with the exclusive right to determine the child's primary residence. Kenneth countered, requesting to be made sole managing conservator. The trial court held a hearing over a two-day period to determine division of property and custody. After hearing evidence from both sides, the court decided that the parties would be joint managing conservators and Kenneth would have the right to determine the child's residence. Vanessa does not contest either the granting of the divorce or the property division.

II.

Standard of Review

The best interest of the child is the primary consideration in determining issues of conservatorship. Tex. Fam. Code Ann. §153.002 (Vernon 2002). We give great deference to the trial court's decision on custody, control, possession, and visitation matters. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). We will reverse the trial court's order only if it appears from the record as a whole that the trial court abused its discretion. Id. A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). This Court will not substitute its judgment for that of the trial court even if it would have reached a different result. Scott v. Younts, 926 S.W.2d 415, 419 (Tex. App.-Corpus Christi 1997, writ denied).

III.

Analysis

A. Continuation of the Hearing

Vanessa urges that because the trial court continued the case for more than a week after she presented her case-in-chief, the trial court did not consider all of the evidence and abused its discretion in deciding the case as it did. Due to the trial court's schedule, the court heard part of the case on December 5, 2005, and continued it until December 14, 2005.

A trial court has the inherent right to control its own docket. Ho v. Univ. of Texas at Arlington, 984 S.W.2d 672, 693-94 (Tex. App.-Amarillo 1998, pet. denied). The trial court explained its pre-existing schedule of cases as a reason for the hiatus. The hearing was continued only nine days. Further, Vanessa's counsel was allowed to examine her on redirect on the day of the reconvened hearing. The court allowed each side ample time to put on its case. Contrary to Vanessa's argument, there is nothing in the record to show that the trial court failed to consider all of the testimony. We find no abuse of discretion in the manner in which the trial court conducted the hearings.

B. Lack of a Social Study

Vanessa also complains that the trial court erred in failing to order a social study. Our review of the record shows that no request was made by either party for a social study. The decision to order a social study is discretionary. Tex. Fam. Code Ann. §107.051 (Vernon 2002). Absent a request for such a study, we find no abuse of discretion. See Swearingen v. Swearingen, 578 S.W.2d 829, 831 (Tex. App.-Houston [1st Dist.] 1978, writ dism'd).

C. Evidentiary Questions

Vanessa asks this Court to reverse because she believes the evidence does not support the trial court's decision. She also argues that the trial court erred in refusing to grant a new trial.

The evidence regarding each party's parenting ability was conflicting. Vanessa testified that she believed it was in the child's best interest for the parents to have joint custody, but that her daughter should continue to live with her. She stated that her daughter had an older half-sister who she was very close to, and it would be difficult for them to be apart. She also testified that Kenneth drank alcohol and suffered from panic attacks, and she stated that she rarely drank. Vanessa was unemployed at the time of the hearing. She had worked sporadically during the time that she and Kenneth were together. Finally, she testified that Kenneth believed in corporal punishment, but she did not. At the time of trial, Kenneth was paying $75 per week in child support. On cross examination, counsel for Kenneth introduced a document showing that Vanessa had pleaded guilty to assaulting an ex-husband. Counsel pointed out several discrepancies between Vanessa's discovery responses and her testimony. Although Vanessa testified that she did not feel that she was married to Kenneth, she had publicly represented herself as his wife on occasion. Kenneth was Vanessa's fourth husband.

Kenneth testified that the couple agreed to a common law marriage. He believed that Vanessa had a long history of infidelity and thought her veracity on a number of issues was questionable. Kenneth introduced testimony from a teenage friend of Vanessa's older daughter claiming she saw Vanessa kissing a male co-worker at Wal-Mart. Vanessa had previously testified that the two were not romantically involved. Kenneth testified that some of Vanessa's close family members used drugs. However, he did not accuse Vanessa of illegal drug use. He was also concerned because Vanessa's father carried a gun.

Kenneth's parents testified that they could assist in the care of the child while Kenneth worked. They believed that their son would provide a safer environment for the child than Vanessa could. At the time of the hearing, Kenneth was employed at a job in a family business making $8.00 an hour.

Here, we have reviewed the record for abuse of discretion. We will not substitute our judgment for that of the trial judge who heard the testimony and observed the demeanor and conduct of the witnesses. We must give deference to the trial court's credibility determinations. In re De La Pena, 999 S.W.2d 521, 526 (Tex. App.-El Paso 1999, no pet.). An abuse of discretion will generally not occur when a trial court bases its decision on conflicting evidence. Id. at 526.

The evidence was conflicting. The trial court determined that Kenneth should have the right to determine the child's primary residence. The court was in the best position to determine influences, personalities, and make observations that cannot be discerned by merely reading the record. There was probative evidence to substantiate the court's decision. We find that the trial court did not abuse its discretion.

We overrule both of appellant's issues and affirm the trial court's judgment.

ROSE VELA  

Justice  

Memorandum Opinion delivered and

filed this 29th day of March, 2007.