Lisbeth Esparza v. Edward Esparza ( 2012 )

NUMBER 13-10-00677-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
LISBETH ESPARZA, Appellant,
v.
EDWARD ESPARZA, Appellee.
On appeal from the 24th District Court
of DeWitt County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Vela
Memorandum Opinion by Justice Vela
This is an appeal from a final divorce decree. The trial court awarded appellee,
Edward Esparza, sole managing conservatorship over T.E, the couple's only child.
Appellant, Lisbeth Esparza, argues that the trial court abused its discretion by: (1)
denying her request for jury trial; (2) naming Edward the sole managing conservator; and
(3) making an inequitable distribution of property. We affirm.
I. PROCEDURAL BACKGROUND
Lisbeth is a citizen of Colombia. She and Edward were married on March 30,
2001 in Colombia. They obtained dual citizenship for T.E. and, in August 2001, moved
to Cuero. During the time they were married, they co-owned a natural supplement
business called "Ancient Remedies." Edward filed a petition for divorce on December
12, 2008, alleging that the marriage had become insupportable. Lisbeth filed a
counter-petition on December 17, 2008, alleging both insupportability and cruelty. The
case was set on the docket for January 20, 2009, but was reset, by Rule 11 agreement, to
the non-jury docket for February 5, 2009. See TEX. R. CIV. P. 11.
On March 13, 2009, the parties entered into a second Rule 11 agreement that
placed the case "on hold." On June 11, the trial court signed an ex parte emergency
order, ordering Lisbeth to surrender the child to Edward and making Edward the
temporary sole managing conservator because Lisbeth had failed to return the child at
the conclusion of a visitation period. In July 2009, the case was placed on the dismissal
docket. The parties signed an order agreeing to a trial date of November 24, 2009 on the
non-jury docket. On November 24, 2009, the trial court granted Lisbeth's motion for
continuance.
The case was reset for January 20, 2010, again on the non-jury docket. On
December 21, 2009, Lisbeth filed a request for jury trial. The trial court held a hearing
with respect to Lisbeth's request. At the hearing, the trial court took judicial notice of the
previous proceedings with respect to all prior trial settings as well as continuances.
2
Counsel for Edward testified at the hearing that his client had incurred fees in excess of
$2,000.00 as a result of previous continuances. He opined that the "resetting of this
case on a jury docket will result in further delays because it would not have precedence."
Counsel stated that he believed that if the case were to go to a jury it would be delayed
another four to six months. He pointed out that the Office of Court Administration stated
that family law cases are to be tried within six months of filing. He also opined that all
delays were as a result of Lisbeth's conduct. The trial court denied the request for jury
trial.
The case proceeded to trial as a non-jury matter. The trial court entered judgment
that Edward would be the sole managing conservator and it also made a property
division. Lisbeth filed a motion for new trial and subsequently filed her notice of appeal.
II. ANALYSIS
A. Denial of a Jury Trial
Lisbeth urges in her first issue that she was deprived of the right to trial by jury.
See TEX. CONST. ART. 1, § 15; TEX. FAM. CODE ANN. § 6.703 (West Supp. 2011). To be
entitled to a jury trial, a party must make a jury request in writing, filed with the clerk of the
court, within a reasonable time before the date set for trial, but not less than thirty days
before trial. TEX. R. CIV. P. 216(a). A request is presumed timely if it was filed more
than thirty days before the actual trial date. See Halsell v. Dehoyos, 810 S.W.2d 371,
371 (Tex. 1991). However, the trial court has the discretion to determine what amount of
time is reasonable, dependent upon the individual circumstances. Girdner v. Rose, 213
S.W.3d 438, 439 (Tex. App.—Eastland 2006, no pet.) (holding that request was untimely
3
because it was made more than two years after suit was filed and less than forty-five days
before the fifth trial setting). The party opposing the jury request may rebut the
presumption that the request was timely by showing a jury trial will: (1) injure the party;
(2) disrupt the trial court's docket, or (3) impede the ordinary handling of the court's
business. Id.; Crittendon v. Crittendon, 52 S.W.3d 768, 769 (Tex. App.—San Antonio
2001, pet. denied); see Tex. Oil & Gas Corp. v. Vela, 429 S.W.2d 866, 877 (Tex. 1968);
Southern Farm Bureau Cas. Ins. Co. v. Penland, 923 S.W.2d 758, 760 (Tex.
App.—Corpus Christi 1996, no writ); Grossnickle v. Grossnickle, 865 S.W.2d 211, 212
(Tex. App.—Texarkana 1993, no writ).
In response to Lisbeth's argument, Edward claims that her request for jury trial was
untimely because it was not filed until the thirtieth day before trial and was late. We will
assume for purposes of resolution of this issue that the request was timely. Here,
Edward offered evidence that the case: (1) was on the dismissal docket since August
2009; (2) had been on file beyond the limit prescribed the Texas Supreme Court for
resolving family law cases; (3) there were pretrial orders setting the case on the non-jury
docket; (4) if the case was transferred to the jury docket it would be further delayed; and
(5) attorney's fees were mounting because of the delay. Given the evidence presented
by Edward, we cannot say that the trial court abused its discretion. We overrule issue
one.
B. Sole Conservatorship
By issue two, Lisbeth argues that the trial court abused its discretion in naming
Edward the sole managing conservator of the child because Edward did not rebut the
4
presumption that conservatorship should be joint. In determining conservatorship, the
child's best interest shall be the primary consideration. Stucki v. Stucki, 222 S.W.3d 116,
(Tex. App.—Tyler 2006, no pet.). A trial court's judgment will be reversed only if it
appears that the trial court has abused its discretion. Gillespie v. Gillespie, 644 S.W.2d
449, 451 (Tex. 1982). Section 151.131(b) of the Texas Family Code provides: "It is a
rebuttable presumption that the appointment of the parents of a child as joint managing
conservators is in the best interest of the child. A finding of a history of family violence
involving the parents of a child removes the presumption under this subsection." TEX.
FAM. CODE ANN. § 153.131(b) (West 2008). In addition, with respect to conservatorship,
section 153.134 utilizes the following factors in determining if the appointment of the
parties as joint managing conservators would be in the child's best interest:
If a written agreed parenting plan is not filed with the court, the court may
render an order appointing the parents joint managing conservators only if
the appointment is in the best interest of the child, considering the following
factors:
(1) whether the physical, psychological, or emotional needs and
development of the child will benefit from the appointment of joint
managing conservators;
(2) the ability of the parents to give first priority to the welfare of the
child and reach shared decisions in the child's best interest;
(3) whether each parent can encourage and accept a positive
relationship between the child and the other parent;
(4) whether both parents participated in child rearing before the filing
of the suit;
(5) the geographical proximity of the parents' residences;
(6) if the child is 12 years of age or older, the child's preference, if
any, regarding the person to have the exclusive right to designate
5
the primary residence of the child; and
(7) any other relevant factor.
TEX. FAM. CODE ANN. § 153.134.
Lisbeth argues that there was a lack of evidence rebutting the presumption of joint
conservatorship, and the court failed to consider evidence of family violence. Edward
counters that the trial court could have reasonably found that the conflict between Lisbeth
and Edward would continue, they would be unable to agree on issues affecting the child's
welfare, Lisbeth would not encourage or accept a positive relationship between Edward
and the child, and the mutual distrust between the parties would undermine the
underlying principles of joint managing conservatorship.
The evidence shows Lisbeth lost primary conservatorship of the child after an
incident in which she caught Edward embracing another woman. At that time, she left
Cuero with her brother and went to Houston for a time and also to Louisiana. At the time
of trial, she had moved back to the Victoria/Cuero area. Lisbeth claims that Edward
would not let her take the child with her at that time. She testified that she thought that
Edward having custody of the child was merely temporary.
The evidence with respect to awarding Edward primary custody came mainly from
Lisbeth, Edward, Lexey Fender, the child's therapist, and Catherine Parsons Key, who
oversaw Lisbeth's visits with the child. Other friends and business patrons also testified.
Fender testified that the child had fears about her mother and had been overly
reprimanded by Lisbeth. According to Fender, the child has the strongest bond with
Edward. She opined that it would be detrimental to the child to be away from Edward.
6
Fender testified that Lisbeth cannot regulate her emotions, has surreptiously followed
Edward and the child, and has done retaliatory things. She does not believe that Lisbeth
has the ability to work with Edward. Fender described Lisbeth's behavior as erratic.
She testified that she saw no indications that Edward suffered from alcohol problems.
Fender did not recommend that Lisbeth have unsupervised visitation.
Edward testified that Lisbeth took the child from him during a period of visitation
and did not return her. He discussed incidents where Lisbeth would sneak around to see
the child. Edward described Lisbeth as unstable and said that he thought he should be
given primary custody of his daughter.
Lisbeth testified that she was the primary caregiver for her daughter before losing
primary custody of the child. She left the daughter with Edward after seeing him in the
embrace of another woman. According to Lisbeth, Edward told her to leave. She
testified that Edward was abusive and controlling during their marriage. Edward told her
that he was recording her telephone conversations, pulled her hair, pushed her, and, on
one occasion he put a pistol to her forehead. Lisbeth said she was afraid of Edward.
According to Lisbeth, Edward told her he was going to take the child away from her and
she would not see her again. She described Edward as a heavy drinker and indicated
that most of the incidents of violence occurred when he was drinking.
On cross examination, Lisbeth said she had not taken her daughter with her when
she left because of the previous incident involving the gun. She did not file charges
against Edward or produce independent evidence to corroborate that Edward had been
violent toward her. Lisbeth sought help at a shelter for abused women in 2009, when
7
she claimed that the child told her she had seen some sort of sexual activity occurring
between Edward and another woman. It is uncontroverted that Lisbeth had not
previously sought help from a woman's shelter from March 2000 through their separation
in December, 2008.
Katherine Parsons Key, a licensed therapist, said she never saw Lisbeth acting
erratically and she had no trouble controlling her emotions. Key said that Lisbeth and the
child got along well and seemed to love one another.
Other witnesses who testified on behalf of the parties testified that there was no
indication that Edward was abusive and that both Edward and Lisbeth seemed to be good
parents and good people.
The fact finder is the sole judge of the credibility of the witnesses and the weight to
be assigned to their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.
2005). The fact finder is free to believe one witness and disbelieve another and
reviewing courts may not impose their own opinions to the contrary. Id. Accordingly,
reviewing courts must assume that the fact finder decided all credibility questions in favor
of the verdict if a reasonable person could do so. Id. If a reasonable finder of fact could
have done so, we must assume that the finder of fact chose what testimony to disregard
in a way that was in favor of the verdict. Id. When the parties offer conflicting evidence
regarding the same encounter, the fact finder is the sole judge of the weight and credibility
of the evidence. Garner v. Garner, 200 S.W.3d 303, 310 (Tex. App.—Dallas 2006, no
pet.).
8
Here, the evidence was conflicting both with respect to the issue of sole managing
conservatorship and the existence, or not, of family violence. It is clear that the trial court
found the testimony of Fender to be credible over that of Lisbeth and her other witnesses.
There was evidence offered that would have allowed the trial court, in its discretion, to
decide that it was not in the best interest of the child to have the parents as joint managing
conservators. There was continuing strife between Lisbeth and Edward. Edward
testified the he did not think the parties could agree on issues affecting the welfare of the
child, including educational and health care issues. The evidence demonstrated that
there was a mutual distrust between Lisbeth and Edward. While we, as an appellate
court, might have decided the issue differently from the trial court, as the sole judge of the
weight and credibility of the evidence, the trial court could choose to reject Lisbeth's
version of events and could reasonably conclude that she failed to establish a history or
pattern of physical abuse by Edward. Hinkle v. Hinkle, 223 S.W.3d 773, 782 (Tex.
App.—Dallas 2007, no pet.); Burns v. Burns, 116 S.W.3d 916, 920 (Tex. App.—Dallas
2003, no pet.). Without credible evidence of a history or pattern of physical abuse by
Edward against Lisbeth, section 153.004(b) of the family code did not prohibit the
appointment of Edward as sole managing conservator of the children. See Coleman v.
Coleman, 109 S.W.3d 108, 111 (Tex. App.—Austin 2003, no pet.). We overrule issue
two.
C. Division of Community Property
By Lisbeth's third issue, she argues that the trial court erred in dividing the couple's
community property. Specifically, she urges that the trial court awarded Edward most of
9
the community property without taking into consideration Edward's infidelity and abusive
treatment.
In a decree of divorce or annulment, the court shall order a division of the estate of
the parties in a manner that the court deems just and right, having due regard for the
rights of each party and any children of the marriage. TEX. FAM. CODE ANN. § 7.001
(West 2006). The factors to be considered in the trial court's division of the estate
include: (1) fault in breaking up the marriage; (2) the spouses' capacities and abilities;
(3) business opportunities; (4) education; (5) relative physical conditions; (6) relative
financial conditions and obligations; (7) disparity of ages; (8) sizes of separate estates; (9)
the nature of the property; and (10) disparity in earning capacities or incomes. See Murff
v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).
The trial court has broad discretion in dividing the marital estate at divorce. See
id. at 699. On appeal, we presume that the trial court exercised this discretion properly
and will reverse the cause only where there is a clear abuse of discretion. See Bell v.
Bell, 513 S.W.2d 20, 22 (Tex. 1974). A clear abuse of discretion is shown when the
division of the property is manifestly unjust. See Mann v. Mann, 607 S.W.2d 243, 245
(Tex. 1980). "The party attacking the property division bears the heavy burden of
showing that the trial court's property division was not just and right." Pletcher v. Goetz,
9 S.W.3d 442, 446 (Tex. App.—Fort Worth 1999, pet. denied).
The evidence of the value of the assets was presented primarily by Edward, who
admitted an inventory into evidence. During their marriage, Edward and Lisbeth
co-owned a business called Ancient Remedies, which sold herbal supplements.
10
Lisbeth, a licensed medical doctor in Colombia did many of the consultations with clients,
while Edward ran the business. She and Edward obtained certificates in natural
medicine because Lisbeth was not licensed to practice medicine in the United States.
The couple also owned a business called "Old World Chandeliers & Iron." Lisbeth
argues that the inventory at Old World Chandeliers & Iron was worth over $100,000.00,
but Edward estimated the value of the inventory at $3,500.00. The parties' taxable
earnings, reflected in their 2007 and 2008 tax returns were $44,907.00 and $42,825.00.
In 2009, Lisbeth began to compete with Ancient Remedies for business at another
location. At the time of the trial, gross revenues for Ancient Remedies were $11,000.00
and $12,000.00 per month. Prior to that time, they had been higher. Neither party filed
income taxes for those years. The trial court ultimately chose to award Edward the
residence that the couple valued at $48,000.00, all clothing and jewelry in his possession,
all household furniture, fixtures, goods, art objects, appliance and equipment in his
control, all sums of cash in his possession, a leased 2006 Hummer, and the Ancient
Remedies business. The court also awarded debt to Edward, which amounted to
$92,320.45, according to his inventory. The court awarded Lisbeth all household
furniture, fixtures, goods, art objects, collectibles, and equipment in her control, all
clothing, jewelry in her possession, a Jeep Wrangler, and the business equipment in her
possession.
With respect to "Old World Chandeliers and Iron," the court ordered the inventory
sold and the funds applied to the parties' joint income tax liability for 2007, 2008, and
2009. Any net proceeds remaining were ordered divided equally between the parties.
11
As stated earlier in the opinion, the trial court obviously did not find Lisbeth's
testimony regarding abuse credible. Thus, in making its property decision, the trial court
could properly have considered awarding the residence to Edward because he was to be
the child's sole managing conservator. The court might have awarded the Ancient
Remedies business to Edward because Lisbeth was already employed by a competitor.
Edward testified that the business had faltered since Lisbeth had left. We cannot say
that the trial court abused its discretion in dividing the marital assets or the division was
manifestly unfair. We overrule issue three.
III. CONCLUSION
Having overruled all issues raised by appellant, we affirm the judgment of the trial
court.
ROSE VELA
Justice
Delivered and filed the
28th day of June, 2012.
12