Kay Lynn Madore and Bill Madore v. Joshua Strader and Somer Nicole Zissa ( 2021 )

Affirmed and Memorandum Opinion filed October 7, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00147-CV
KAY LYNN MADORE AND BILL MADORE, Appellants
V.
JOSHUA STRADER AND SOMER NICOLE ZISSA, Appellees
On Appeal from the 328th District Court
Fort Bend County, Texas
Trial Court Cause No. 17-DCV-240008
MEMORANDUM OPINION
Appellants Kay Lynn and Bill Madore (“Grandparents”) appeal the portion of
the trial court’s order designating appellee Joshua Strader (“Father”) as a joint
managing conservator of K.M. (“the Child”). In two issues Grandparents assert (1)
the trial court reversibly erred in failing to file findings of fact and conclusions of
law; and (2) Father has a history of family violence, which prohibited the trial court
from appointing him as a joint managing conservator. Having reviewed the record,
we conclude the trial court’s failure to file findings of fact and conclusions of law
was not harmful, and the trial court did not abuse its discretion in appointing Father
as a joint managing conservator. We affirm the trial court’s order.
BACKGROUND
I. Pretrial Proceedings
This case began when Father filed an original petition in which he alleged that
the Child’s parents would be separated and joint conservatorship was not in the best
interest of the Child because the Child’s mother, Sommer Zissa, (“Mother”) had a
history or pattern of committing family violence during the two-year period
preceding the date of filing the petition. Grandparents filed a petition in intervention
in which they alleged they were the Child’s maternal grandparents and sought joint
managing conservatorship because the appointment of the Child’s parents as joint
conservators would not be in the best interest of the Child. Grandparents alleged that
appointment of the parents as joint managing conservators would significantly
impair the Child’s physical health or emotional development. Grandparents further
alleged that Father engaged in a history or pattern of family violence and child
neglect. Grandparents subsequently filed a first amended petition seeking joint
managing conservatorship with Mother. Mother filed a counter-petition seeking sole
managing conservatorship or, in the alternative, joint managing conservatorship with
Father, with Mother having right to designate the primary residence of the Child.
II. Bench Trial
The trial court proceeded to trial without a jury. The record reflects that the
Child was born in 2015 and was almost four years old at the time of trial. Much of
the testimony at trial centered around both parents’ struggles with alcohol abuse and
their recovery efforts. Because Grandparents challenge the failure of the trial court
to make a family violence finding, we focus on the parties’ testimony about allegedly
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violent events.
Father testified that he filed the petition seeking conservatorship of his
daughter because Mother was “out of control” with “her drinking and everything.”
Father worked as a scaffold builder for an oil company. One day Father came home
from work and discovered that Mother had run over his motorcycle with her car.
That day Mother had threatened to lock Father out of the house and when Father
came home, Mother’s car was parked on top of his motorcycle. Father stayed three
days in a hotel because Mother had indeed locked him out of the house. When the
tow truck came to pick up Father’s damaged motorcycle Mother tried to chase the
tow truck driver before he was able to secure the motorcycle. The chase resulted in
Mother’s arrest for driving while intoxicated, possession of a controlled substance,
and resisting arrest.
After Mother’s arrest Father, with the help of a police officer, tried to pick up
the Child from Grandparents’ home, but Bill Madore, the Grandfather, refused to
give up the Child and had Father escorted from the home by the police officer. Father
filed his petition for conservatorship the next day.
Father testified to several incidents of Mother’s physical violence, including:
• Pulling a gun out of the glove box and chambering a round while
the Child was in the car;
• Punching Father in the face several times;
• Slamming Father into walls, ripping his clothes off, stealing
Father’s wallet and keys to his car; and
• Kneeing Father in the groin;
Father denied having ever assaulted Mother or having been violent with her
in any way. Father testified that he attempted to defend himself by restraining
Mother, but “never laid [his] hand on her.” As an example, Father described a time
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in which he was at work and Mother repeatedly called him and his boss to harass
Father. Father told Mother that if she did not stop the harassing phone calls, he would
have the mobile provider turn off her phone service.1 When Mother continued the
harassing phone calls Father had the mobile provider turn off Mother’s service.
Mother then started using Grandfather’s phone to harass Father. Father’s boss
instructed him to leave work because “he had had enough.” Father went home,
intending to leave, but took a nap first. Father awoke from his nap to Mother
punching him in the face. According to Father, Mother left both her children with
Grandparents with the sole aim of fighting with Father. When Father tried to leave,
Mother stood in the doorway, ripped his shirt off, and punched him in the face again.
Barefoot, Father escaped when Mother took his boots to the kitchen to fill them with
water in an effort to stop him from leaving.
Mother testified to a different version of events. Mother admitted sending too
many texts to Father and, after dropping the children at Grandparents’ house, Mother
drove to Father’s apartment to ask why he had turned off service to her phone.
Mother testified that Father was asleep when she arrived and that neither one of them
was intoxicated. Mother testified that Father woke up when she arrived and tried to
go to the bathroom, but Mother blocked his way. Mother testified that Father shoved
her into a wall while she was blocking access to the bathroom. Mother described
“pushing and shoving,” which ended with Father “slamming [her] down on the bed,”
and Father restraining Mother by sitting on her abdomen and kneeling on her arms.
Mother testified that Father slapped her twice. Mother also testified that Father tried
to choke her but she was able to break free and leave the apartment.
Father testified that since he filed the petition Mother had two new DWI
1
Father paid the joint phone bill.
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charges filed in different counties. Father produced arrest records for the DWI
charges in addition to an arrest record in which Mother was charged with assaulting
Father’s niece. The second DWI arrest was the result of an accident where both
parties were transported to the hospital. Medical records showed Mother’s blood
alcohol level at the hospital was 0.215.
Father admitted to previous alcohol abuse, but testified that he had been sober
since January 29, 2017, two years before trial. In March 2017, after Father filed his
petition, all parties were ordered to submit to regular drug screening. Father appeared
at every drug screening and passed all of them.
Kay Madore’s brother, Gary Post, testified that while attending a family
vacation in New Braunfels in June 2015, two years before Father filed his petition,
he witnessed Mother and Father in a “shoving contest.” Post testified that Father
pushed Mother into a wall. Post could not determine whether Mother or Father had
begun the argument. During the argument, Post picked up the Child and removed
her from the apartment where the altercation was happening. Father followed Post
to the parking lot and became verbally abusive. Post testified that law enforcement
was called and banned Father from the resort property. Post admitted he had not
interacted with Father outside a court setting since that incident.
Father told a different version of the events in New Braunfels. Father testified
that he and Mother had been arguing when Father decided to walk away from the
altercation. While walking along the highway a patrol car drove by Father and asked
why he was walking along the highway. Father explained the situation and the
officer drove Father back to the apartment where the family was staying. Kay
Madore met Father in the parking lot, and they walked upstairs to the apartment
together. When they opened the door, they saw Mother and Bill Madore in a physical
altercation. Father tried to break up the fight but both parties continued to be
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aggressive. Bill grabbed Father’s shirt and tried to pull Father toward him. Father
responded by hitting Bill. Post was holding the Child and Father followed Post to
the parking lot in an attempt to get the Child from Post. Another patrol car arrived
in the parking lot and the officer told Father he did not plan to arrest him. At that
time Bill and Mother were still arguing on the balcony of the apartment and could
be seen from the parking lot. Father pointed to the fighting family members and told
the police officer that peace would be kept more easily if the officer arrested him.
The officer obliged, charged Father with public intoxication, and transported Father
from the scene in the patrol car.
The record reflects Mother’s testimony about another incident in which
Mother testified that on February 2, 2016, she and Father were arguing at a bar. The
argument became physical, and Father slammed Mother against a car. Bill Madore
also testified that Father assaulted Mother in March 2017 resulting in Mother’s
hospitalization. This record reflects the March 2017 incident was the incident
described in conflicting testimony by Mother and Father in which Father was
sleeping in his apartment at the beginning of the incident.
After a bench trial the trial court signed an order appointing both parents and
Grandparents joint managing conservators with Father having the exclusive right to
designate the primary residence of the Child. The trial court also issued an expanded
standard possession order, which permitted Mother to have possession the second,
fourth, and fifth weekends during the school term. The expanded possession order
accommodated Mother’s desire to coordinate visitation with her other child.
ANALYSIS
In two issues Grandparents appealed the trial court’s order challenging (1) the
trial court’s failure to file findings of fact and conclusions of law; and (2) the trial
court’s appointment of Father as a joint managing conservator in light of evidence
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of “an ongoing culture of family violence” between Father and Mother.
I. Grandparent Standing
Before addressing Grandparents’ issues on appeal we address Father’s
standing argument. Father first argues that Grandparents’ intervention failed as a
matter of law because they did not establish all the required elements for their
intervention. Grandparents intervened in Father’s suit claiming general standing
under Family Code section 102.004(a)(1) as the primary basis for their request to
intervene in the conservatorship action.2
A. Statutory framework
Standing is a component of subject-matter jurisdiction without which courts
lack authority to decide the merits of the parties’ claims. In re H.S., 550 S.W.3d 151,
155 (Tex. 2018). Issues of standing are reviewed de novo on appeal. Id. Standing is
implicit in the concept of subject-matter jurisdiction, and is a threshold issue in a
child custody proceeding. In re Vogel, 261 S.W.3d 917, 920 (Tex. App.—Houston
[14th Dist.] 2008, orig. proceeding). Although no motion to strike Grandparents’
intervention was filed in the trial court, we may address the issue for the first time
on appeal. See Whitworth v. Whitworth, 222 S.W.3d 616, 621 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (holding that court of appeals could address grandparents’
standing to intervene sua sponte).
Texas confers standing to bring a suit affecting the parent child relationship
(“SAPCR”) to individuals who meet the statutory framework set out in the Family
Code. See id. A party seeking conservatorship of a child must have standing to seek
such relief. In re McDaniel, 408 S.W.3d 389, 396 (Tex. App.—Houston [1st Dist.]
2
Contrary to Father’s argument, the record reflects that Grandparents did not seek
grandparent standing under section 153.433, which addresses rights to possession and access. Tex.
Fam. Code § 153.433.
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2011, orig. proceeding). Grandparents have standing to intervene in a SAPCR if they
have standing to bring an original suit. See Guar. Fed. Sav. Bank v. Horseshoe
Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). A grandparent can meet the
standing requirements to bring an original suit seeking managing conservatorship
under Family Code section 102.003(a)(9) by having “actual care, control, and
possession of the child for at least six months ending not more than 90 days
preceding the date of the filing of the petition.” See Tex. Fam. Code § 102.003(a)(9).
A grandparent related by blood can also meet the standing requirement by providing
“satisfactory proof to the court that the order requested is necessary because the
child’s present circumstances would significantly impair the child’s physical health
or emotional development . . . .” See Tex. Fam. Code § 102.004(a)(1). “Satisfactory
proof” is based on a preponderance-of-evidence standard of facts then existing when
the suit was filed. In re K.D.H., 426 S.W.3d 879, 883–84 (Tex. App.—Houston [14th
Dist.] 2014, no pet.).
When standing has been conferred by statute, the statute itself should serve as
the proper framework for a standing analysis. Id. at 883. Ordinarily, standing is
based on the existence of certain facts. Id. at 884. A grandparent seeking to intervene
in a conservatorship suit and claiming standing under section 102.004(a)(1) of the
Family Code need only file a petition and allege the order requested is necessary
because the child’s present circumstances would significantly impair the child’s
physical health or emotional development. See id. at 884. “In such a case, pleading
a proper basis for standing is sufficient to show standing, unless a party challenges
standing and submits evidence showing the non-existence of a fact necessary for
standing.” Id.
B. Application
Here, Grandparents have standing to intervene in this SAPCR for
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conservatorship under section 102.003(a)(9) of the Family Code. See Tex. Fam.
Code § 102.003(a)(9) (providing that a nonparent other than a foster parent has
standing if they “had actual care, control, and possession of the child for at least six
months ending not more than 90 days preceding the date of the filing of the
petition.”). The Family Code recognizes that a narrow class of nonparents, who have
served in a parent-like role to a child over an extended period of time, may come to
court and seek to preserve that relationship. In re H.S., 550 S.W.3d at 163. Under
section 102.003(a)(9), a nonparent other than a foster parent has standing if they
“had actual care, control, and possession of the child for at least six months ending
not more than 90 days preceding the date of the filing of the petition.” Tex. Fam.
Code § 102.003(a)(9). In determining standing under this section, the trial court
“shall consider the child’s principal residence during the relevant time preceding the
date of commencement of the suit.” Id. Importantly, the “actual care, control, and
possession” requirement does not turn on whether the nonparent has “ultimate legal
authority” over the child. In re H.S., 550 S.W.3d at 160. Rather, a nonparent has
“actual care, control, and possession of the child” under section 102.003(a)(9) if the
nonparent served in a parent-like role by (1) sharing a principal residence with the
child, (2) providing for the child’s daily physical and psychological needs, and (3)
exercising guidance, governance, and direction similar to that typically exercised on
a day-to-day basis by parents with their children. In re H.S., 550 S.W.3d at 159. A
determination of standing under Section 102.003(a)(9) is accordingly fact specific
and determined on a case-by-case basis. In re Shifflet, 462 S.W.3d 528, 538 (Tex.
App.— Houston [1st Dist.] 2015, orig. proceeding).
Here, the trial court entered temporary orders naming Grandparents temporary
nonparent joint managing conservators with the right to physical possession of the
child, duty of care, control, protection, and reasonable discipline of the child, duty
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to provide the child with clothing, food, shelter, education, and medical,
psychological, and dental care, and, inter alia, the right to consent for the child to
medical, psychiatric, psychological, dental, and surgical treatment after consulting
with the parent joint managing conservators. Moreover, the testimony at trial was
undisputed that the Child lived in the home of the Grandparents for most of her life
including the 90 days preceding the filing of the petition.
On this record, we conclude that Grandparents established standing to
intervene in the SAPCR under the statutory framework of the Family Code. We turn
now to Grandparents’ issues on appeal.
II. The trial court did not err in naming Father a joint managing
conservator.
In Grandparents’ second issue they assert the trial court erred by naming the
parties joint managing conservators despite credible evidence of “an ongoing culture
of family violence” between Father and Mother.
The child’s best interest is always a trial court’s primary consideration in
determining conservatorship issues. Tex. Fam. Code § 153.002. The Family Code
presumes that appointment of both parents as joint managing conservators or a
parent as sole managing conservator is in a child’s best interest, and it imposes a
heavy burden on a nonparent to rebut that presumption. See id. § 153.131; see also
In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000) (explaining that natural parent “has
the benefit of the parental presumption . . . and the nonparent seeking
conservatorship has a higher burden”); Whitworth, 222 S.W.3d at 623 (“There is a
strong presumption that the best interest of a child is served if a natural parent is
appointed as managing conservator.”).
The law presumes that the appointment of both parents as joint managing
conservators is in the best interest of the child. See Tex. Fam. Code § 153.131(b).
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That presumption is removed, however, if the trial court makes a finding of a history
of family violence. Id.; Baker v. Baker, 469 S.W.3d 269, 273 (Tex. App.—Houston
[14th Dist.] 2015, no pet.). Section 153.004(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[.]” Tex. Fam. Code § 153.004(b).
Grandparents contend that Section 153.004(b) precludes the trial court from
appointing Father a joint managing conservator because credible evidence was
presented that Father has a history of being physically abusive toward Mother. The
trial court, however, did not make a finding of family violence in this case.
A. Standard of Review and Applicable Law
A trial court has broad discretion to decide the best interest of the child in
matters involving custody, visitation, and possession. In re Marriage of Harrison,
557 S.W.3d 99, 120 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); In re
R.T.K., 324 S.W.3d 896, 899 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).
We review a trial court’s conservatorship decision for an abuse of discretion.
Harrison, 557 S.W.3d at 121. A trial court abuses its discretion when its decision is
unreasonable, arbitrary, or without reference to guiding rules or principles. See
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002); Baker, 469 S.W.3d at
273. We make our determination based on a review of the entire record. Am. Flood
Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006). In evaluating a trial
court’s exercise of discretion, we generally defer to the court’s resolution of
underlying facts and credibility determinations that may have affected its decision,
and we do not substitute our judgment in its place. See Allen v. Allen, 475 S.W.3d
453, 458 (Tex. App.—Houston [14th Dist.] 2015, no pet.). The trial court is best able
to observe and assess the witnesses’ demeanor and credibility and to sense what may
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not be apparent merely from reading the record on appeal. Id.Under the abuse of discretion standard in this context, challenges to the legal
or factual sufficiency of the evidence are not independent grounds of error, but are
relevant considerations in assessing whether the trial court abused its discretion.
Harrison, 557 S.W.3d at 121. “A trial court does not abuse its discretion if there is
some evidence of a substantive and probative character to support its decision.” In
re R.T.K., 324 S.W.3d at 900–01.
When, as here, the trial court is the fact finder, it is the sole judge of the weight
and credibility of the evidence; if it does not find credible evidence of a history of
domestic violence, it is not bound by section 153.004. Cf. Coleman v. Coleman, 109
S.W.3d 108, 111 (Tex. App.—Austin 2003, no pet.) (“Because the district court
obviously did not find the testimony to be credible evidence of a history of sexual
abuse, it was not bound by section 153.004(b).”). With these principles in mind, we
turn to Grandparents’ arguments in support of their second issue.
B. Application
Grandparents assert that both Mother and Father testified to physical violence
between them. Mother testified to one incident in which she alleged that Father
shoved her into a wall, slammed her on the bed, and choked her. Father described a
different version of the same events, testifying that he awoke to Mother punching
him in the face and had to escape his own apartment due to Mother’s violence.
Grandparents also assert that the trial court should have believed Gary Post’s version
of the events on the New Braunfels vacation rather than Father’s testimony. Mother
also testified about physical violence in a bar fight.
In each of the instances of physical violence alleged in Grandparents’ brief
and reflected in the record, the parties provided materially different accounts of
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events. The trial court is the sole judge of the weight and credibility of the evidence.
See Harrison, 557 S.W.3d at 130. Because the trial judge could have reasonably
found no credible evidence of a history or pattern of domestic abuse by Father, the
record does not give rise to a rebuttable presumption that the appointment of Father
as the sole managing conservator was not in the Child’s best interest under section
153.004(b). Id.Grandparents rely on In re Marriage of Stein for the proposition that Father
cannot be appointed as a joint managing conservator because there was a history of
family violence against Mother. See In re Marriage of Stein, 153 S.W.3d 485 (Tex.
App.—Amarillo 2004, no pet.). In Stein, both parents admitted to committing family
violence against each other, and the trial court appointed both to be joint managing
conservators. Stein, 153 S.W.3d at 487. The conflicting evidence in this case
distinguishes it from Stein, which involved undisputed evidence of family violence.
Grandparents also rely on Watts v. Watts, but it, too, is distinguishable. See
Watts v. Watts, 396 S.W.3d 19 (Tex. App.—San Antonio 2012, no pet.). In Watts,
“evidence was presented from which the jury could find either [father] or [mother],
or both, had a history or pattern of physical abuse against the other.” The jury found
that mother “should be appointed as the sole managing conservator of [the parents’]
two children.” Id. at 21. The court in Watts recognized that “the trial court was
prohibited from appointing [father] and [mother] as joint managing conservators if
the jury found they both engaged in physical abuse against each other” and therefore,
“because the jury found one parent [mother] should be appointed as sole managing
conservator, the jury properly applied the law as given.” Id. at 22.
Here, the evidence of family violence was heavily disputed; Watts does not
support Grandparents’ argument.
We conclude that Grandparents have not shown that the trial court abused its
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discretion in designating Father as a joint managing conservator of the Child
notwithstanding Grandparents’ assertion that Father had a history or pattern of
family violence. As the trial court could have reasonably credited Father’s version
of events, the trial court did not abuse its discretion. We overrule Grandparents’
second issue.
III. Grandparents were not harmed by the trial court’s failure to file findings
of fact and conclusions of law
In Grandparents’ first issue they assert this case should be remanded to the
trial court for findings of fact and conclusions of law. Grandparents timely requested
findings of fact and conclusions of law after the trial court signed its order in the
SAPCR. See Tex. R. Civ. P. 296. The trial court failed to make findings or
conclusions within the allotted time, and Grandparents timely filed a notice of past-
due findings of fact and conclusions of law. No findings or conclusions were ever
made.
After judgment and upon proper request from a party, the trial court shall issue
a written statement of its findings of fact and conclusions of law within twenty days
of a party’s request. Tex. R. Civ. P. 296; Baltzer v. Medina, 240 S.W.3d 469, 473
(Tex. App.—Houston [14th Dist.] 2007, no pet.). In a SAPCR, a party may also
request that the trial court specify in writing the specific reasons for deviating from
the Family Code’s standard possession schedule. See Tex. Fam. Code §§ 153.258(a),
153.312–.315. If the court does not file its findings, the requesting party shall file a
notice of past due findings within thirty days of the first request giving the trial court
forty additional days to file its findings. Tex. R. Civ. P. 297. The trial court is
required to respond to these requests, and failure to do so is presumed harmful unless
the appellate record “affirmatively shows that the complaining party has suffered no
injury.” Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). An
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appellant is harmed if there are two or more possible grounds on which the court
could have ruled and the appellant is left to guess the basis of the trial court’s ruling
effectively preventing the appellant from properly presenting their case on appeal.
Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014); Baltzer, 240
S.W.3d at 473.
Grandparents assert they were harmed by the trial court’s failure to file
findings and conclusions because the trial court’s failure precluded them from
“concisely presenting their case to this Court.” Grandparents, however, only
challenged the trial court’s failure to make a finding of family violence, which would
preclude Father’s appointment as a joint managing conservator.
Grandparents assert one issue for setting aside the trial court’s appointment of
Father as a joint managing conservator: that the evidence of a history of family
violence and physical abuse in this case rebutted section 153.131’s parental
presumption, precluded appointment of Father as a joint managing conservator, and
created a presumption that it was not in the Child’s best interest for Father to be
appointed as a managing conservator. See Tex. Fam. Code §§ 153.004(b), 153.131.
Under the Family Code the trial court was prohibited from appointing Father as a
joint managing conservator if the court found credible evidence of a history or
pattern of family violence. After hearing the evidence, the trial court appointed
Father a joint managing conservator.
The record affirmatively reflects that Grandparents were not impaired in
bringing their appeal because of confusion over the trial court’s implied finding.
Viewed in that posture, we hold that the trial court’s failure to file findings and
conclusions on whether credible evidence supported a finding of family violence
was not harmful and abatement of this case is not necessary. See Goggins v. Leo,
849 S.W.2d 373, 379–80 (Tex. App.—Houston [14th Dist.] 1993, no writ) (trial
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court’s failure to file findings of facts and conclusions of law in forcible detainer
action involving condominium did not harm defendant when there was only one
possible theory of recovery for plaintiff and implied findings necessary for recovery
were supported by evidence).
Grandparents also challenge the trial court’s failure to file findings and
conclusions pursuant to section 153.258 of the Family Code because the order varied
from the standard possession order without a written explanation. We note, however,
that the trial court stated its reason for deviation from the standard possession order
on the record and Grandparents did not object to the deviation from the standard
possession order. The court’s oral findings have probative value as long as they do
not conflict with those in a separate document and Grandparents were not harmed
by the court’s failure to reduce its oral finding to writing. See Baltzer, 240 S.W.3d
at 474 (trial court’s failure to reduce oral findings to writing was harmless). We
overrule Grandparents’ first issue.
CONCLUSION
Having overruled Grandparents’ issues on appeal we affirm the trial court’s
judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Wise, Bourliot, and Zimmerer.
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