Staci Pickens v. Kerry C. Pickens, II ( 2014 )

NO. 12-13-00235-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
STACI PICKENS, § APPEAL FROM THE
APPELLANT
V. § COUNTY COURT AT LAW
KERRY C. PICKENS, II,
APPELLEE § RUSK COUNTY, TEXAS
MEMORANDUM OPINION
Staci Pickens appeals the trial court’s final decree of divorce. On appeal, Staci presents
two issues. We affirm.
BACKGROUND
Staci Pickens and Kerry C. Pickens, II are the parents of one child, Braxlie, born June 1,
2011. On August 2, 2012, Staci filed a first amended petition for divorce, requesting that she
and Kerry be appointed joint managing conservators, that she be designated as the conservator
with the exclusive right to designate the primary residence of the child, that Kerry be ordered to
pay child support and to provide medical child support, and that the court divide their estate in a
manner that the court deemed just and right. The trial court filed temporary orders appointing
Staci and Kerry as temporary joint managing conservators of the child and granting Staci the
exclusive right to designate the primary residence of the child. The temporary orders granted
Kerry visitation with the child by mutual agreement or between 9:00 a.m. and 6:00 p.m. on
Thursdays, Saturdays, and Sundays on his days off from work.
After the final hearing, the trial court entered a nunc pro tunc final decree of divorce,
dividing the parties’ marital estate. The trial court appointed Staci and Kerry joint managing
conservators of the child, designated Staci as the conservator with the exclusive right to
designate the primary residence of the child within Rusk County or counties contiguous to Rusk
County, and ordered Kerry to pay child support. The trial court further ordered that, failing
mutual agreement, Kerry was to have possession of the child fourteen days out of every twenty-
eight days, and must designate his days of possession at least two weeks in advance. Staci filed a
request for findings of fact and conclusions of law before the court entered its nunc pro tunc final
decree of divorce. When the trial court did not comply, Staci filed a notice of past due findings
of fact and conclusions of law. This appeal followed.
DEVIATION FROM STANDARD POSSESSION ORDER
In her first issue, Staci argues that the trial court abused its discretion by entering a
possession order that deviated from the standard possession order without a sufficient showing
that such order was in the best interest of the child.
Standard of Review
We give wide latitude to a trial court’s determinations on possession and visitation issues,
reversing the court’s decision only if it appears that the court abused its discretion in light of the
record as a whole. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses
its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or
principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
Applicable Law
The guidelines established in the standard possession order are intended as the minimum
possession for a joint managing conservator. TEX. FAM. CODE ANN. § 153.251(a) (West 2008).
There is a rebuttable presumption that the standard possession order provides reasonable
minimum possession of a child for a parent named as joint managing conservator, and that the
order is in the best interest of the child. TEX. FAM. CODE ANN. § 153.252 (West 2008). A court
shall render an order that grants periods of possession of the child as similar as possible to those
provided by the standard possession order if the work schedule or other special circumstances of
the managing conservator make the standard order unworkable or inappropriate. TEX. FAM.
CODE ANN. § 153.253 (West 2008). If the court renders terms of possession of a child under an
order other than a standard possession order, the court shall be guided by the guidelines
established by the standard possession order and may consider (1) the age, developmental status,
circumstances, needs, and best interest of the child; (2) the circumstances of the managing
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conservator and of the parent named possessory conservator; and (3) any other relevant factor.
TEX. FAM. CODE ANN. § 153.256 (West 2008).
Where possession of a child by a parent is contested and the possession of a child varies
from the standard possession order, the court shall, upon timely request, state in the order the
specific reasons for the variance from the standard order. See TEX. FAM. CODE ANN. § 153.258
(West 2008). If written, the request must be made or filed with the court not later than ten days
after the date of the hearing. See id. Alternatively, an oral request may be made in open court
during the hearing. See id. We apply the same standard of review when a party fails to request
specific reasons for the variance under Section 153.258 as when a party fails to make a request
for findings of fact under Texas Rules of Civil Procedure 296 through 299. Jacobs v. Dobrei,
991 S.W.2d 462, 464 n.2 (Tex. App.—Dallas 1999, no pet.). When a party does not timely
request findings of fact, we infer that the trial court made all the necessary findings to support its
judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). We review the record to
determine whether some evidence supports the judgment. Worford, 801 S.W.2d at 109. We
consider only the evidence “most favorable” to the trial court’s judgment and uphold that
judgment on any legal theory that finds support in the evidence. Id.
Analysis
First, Staci complains that the trial court did not file findings of fact and conclusions of
law stating its bases for the possession order that deviated from the standard possession order.
However, Staci’s request for findings of fact and conclusions of law was made pursuant to Rules
296 and 297 of the Texas Rules of Civil Procedure. And these rules do not apply here. See TEX.
FAM. CODE ANN. § 153.258 (Section 153.258 applies “[w]ithout regard to Rules 296 through 299
[of the] Texas Rules of Civil Procedure”). Staci did not request the trial court to set forth the
reasons for deviating from the standard possession order, and she did not cite Section 153.258 of
the Texas Family Code. Moreover, Staci’s request was filed on June 6, 2013, more than ten days
after the April 23, 2013 final hearing. Accordingly, the trial court was not required to enter
findings and conclusions under that section of the family code.
Because Staci did not timely request findings of fact pursuant to Section 153.258, we
infer that the trial court made all the necessary findings to support its judgment. See Roberson,
768 S.W.2d at 281. Thus, we review the record to determine whether some evidence supports
the judgment. See Worford, 801 S.W.2d at 109.
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The evidence shows that the parties contested possession of and access to the child.
Kerry was a tool pusher or rig manager in the oil field and worked a two week on/two week off
schedule out of town. At the time of trial, he was working in West Virginia. He lived with his
mother and his older child, a thirteen year old son. He stated that he lived approximately thirty
to forty minutes from Staci, and that he picked up and delivered Braxlie to Staci during his times
of possession.
Kerry testified that he did not intend to take his daughter with him to West Virginia, and
admitted that he would be working out of town for approximately three quarters of every month.
Kerry requested that Braxlie live with him when he was off work and with Staci when he was at
work. He and his mother believed that this was in Braxlie’s best interest.
Kerry testified that Staci denied him overnight visits with Braxlie even though she
allowed at least three other babysitters to keep the child overnight. Staci admitted that she left
the child overnight with three babysitters and her older daughter. She also said that she
employed a babysitter to watch the child while she was at work. However, Staci said she refused
to let Kerry keep the child overnight because he had not been able to get the child to sleep or nap
during the day. Kerry and his mother denied not being able to get Braxlie to nap when she is in
his possession. Staci believed it was in the child’s best interest not to have overnight visitation
with Kerry until she was three years old. Instead, she requested that Kerry have possession of
Braxlie during the day on the Fridays, Saturdays, and Sundays of his weeks off work. She
requested that Kerry be awarded possession in accordance with the standard possession order
when the child turned three years old.
Staci testified that she was the child’s primary caretaker during the marriage because
Kerry was out of town about three weeks each month. She admitted that if she spent the night
with her boyfriend, the child stayed overnight with her older daughter. A licensed investigator
testified that on successive days and nights, he observed Staci’s boyfriend’s vehicle at the house
all night while she was working a night shift at a nursing home. He stated that more than once,
Staci’s boyfriend was the person who delivered the child to Kerry at Staci’s house in the
morning.
In summary, there is some evidence to support the trial court’s judgment. A standard
possession order would have given Kerry a maximum of approximately thirteen days of
possession per month. See TEX. FAM. CODE ANN. § 153.312(a) (West 2008). However, the
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standard possession order would have granted Kerry possession of the child on the first, third,
and fifth Friday evening of each month through the following Sunday evening, and Thursday
evenings each week. The evidence shows that Kerry was at work out of town for two weeks
each month, and at home approximately two weeks every month. Thus, the trial court
reasonably could have determined that Kerry’s work schedule made the standard order
unworkable or inappropriate. The court fashioned a period of possession as similar as possible to
that provided by a standard possession order. See TEX. FAM. CODE ANN. § 153.253.
Consequently, this portion of the trial court’s possession order does not constitute an abuse of
discretion. We overrule Staci’s first issue.
TIMES AND CONDITIONS OF STANDARD POSSESSION ORDER
In her second issue, Staci contends that the trial court abused its discretion by entering a
possession order that fails to specify the times and conditions for possession and access “without
a showing that such order is in the best interest of the child[.]” She complains that the possession
order fails to specify dates “or even specific dates of the week” that Kerry must exercise his
possession and access. Further, Staci argues that this failure in effect gives Kerry absolute
discretion over possession and access to the child, which makes the order “completely
unworkable” and unenforceable by contempt.
Section 153.006(c) provides that the court shall specify and expressly state in the order
the times and conditions for possession of or access to the child, unless a party shows good cause
why specific orders would not be in the best interest of the child. TEX. FAM. CODE ANN.
§ 153.006(c) (West 2008). The evidence shows that Kerry worked a two week on/two week off
schedule out of town. An exhibit admitted into evidence showed Kerry’s monthly work schedule
from April 2013 through the month of trial, July 2013, and some of his future monthly schedules.
None of his monthly work schedules were identical, including specific dates on or off work, nor
did they show a particular pattern. By the evidence of his unusual work schedule, Kerry showed
that an order with specific times or dates for possession of and access to the child would not have
been in the child’s best interest.
In her brief, Staci cites Roosth v. Roosth, 889 S.W.2d 445 (Tex. App.—Houston [14th
Dist.] 1994, writ denied) to support her argument that the possession order is “completely
unworkable” and unenforceable by contempt. In Roosth, the possession order gave the mother
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complete discretion to determine when, where, and if the father may have possession of or access
to the children. See Roosth, 889 S.W.2d at 452. The complete discretion and lack of
enforceability of the possession order effectively denied the father’s right to visitation with his
children, and the court of appeals held that the trial court abused its discretion in ruling that
visitation periods depended upon the mother’s approval. See id. Similarly, in In re Marriage of
Collier, No. 07-09-00146-CV, 2011 WL 13504 (Tex. App.—Amarillo Jan. 4, 2011, no pet.), the
possession order gave the mother complete discretion over the father’s possession of the child
and was unenforceable by contempt. See In re Marriage of Collier, 2011 WL 13504, at *4. On
appeal, the court held that the trial court abused its discretion because the order effectively
denied the father access to the child and also denied him the remedy of contempt against the
mother. See id. at *5-6.
Here, however, neither parent is effectively being denied possession of or access to the
child. The order granted Kerry possession of the child for fourteen days out of every twenty-
eight days and ordered that he must designate those days at least two weeks in advance. Further,
the trial court ordered that all possession begin and end at 6:00 p.m. on the designated days.
Neither parent is given complete discretion over the other parent’s possession of or access to the
child. See In re Marriage of Collier, 2011 WL 13504, at *4; Roosth, 889 S.W.2d at 452.
We overrule Staci’s second issue.
DISPOSITION
Having overruled Staci’s first and second issues, we affirm the judgment of the trial
court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered February 28, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 28, 2014
NO. 12-13-00235-CV
STACI PICKENS,
Appellant
V.
KERRY C. PICKENS, II,
Appellee
Appeal from the County Court at Law
of Rusk County, Texas (Tr.Ct.No. 2012-07-368-CCL)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, STACI PICKENS, for which execution may issue, and that this decision
be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.