in the Interest Of: Z.M.C. and R.B.C. ( 2015 )

Affirmed and Opinion Filed May 26, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01603-CV
IN THE INTEREST OF Z.M.C. AND R.B.C.
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-52980-2008
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Myers, and Justice Evans
Opinion by Chief Justice Wright
This is an appeal from the trial court’s August 23, 2013 Final Order in Suit Affecting the
Parent-Child Relationship (the Order), which appoints the parents of the above-referenced
children (Mother and Father) joint managing conservators of their two daughters. In this appeal,
Mother contends: (1) the Order contains contradictory terms; (2) the trial court failed to make
findings of fact and conclusions of law when requested; and (3) the testimony of an expert called
by Father should be disregarded. We affirm the trial court’s Order.
Mother and Father were divorced in 2009. Their Divorce Decree gave Father the right to
designate the children’s primary residence in Plano, Texas. In 2010, Mother filed a motion to
modify, seeking the right to designate the children’s primary residence. Father did not oppose
the modification, and the parties operated under its terms for some time. The children lived with
Mother in Dallas and visited their Father in Plano according to the original decree’s terms.
Neither parent was ordered to make support payments under the original decree or Mother’s
proposed modification.1
In the summer of 2012, Father filed his Counterpetition to Modify Parent-Child
Relationship, seeking to be named sole managing conservator of the children. He alleged that
Mother had a history or pattern of child neglect directed against their daughters, and he asked the
trial court to deny Mother access to them or to order that her visits with them be supervised. He
also represented that the parties would enter into an agreement providing for payment of support
for the children. Mother answered Father’s counterpetition and urged her own countersuit for
modification. Mirroring Father’s pleading, Mother alleged that Father had a history or pattern of
neglect against their daughters and sought to be named their sole managing conservator. Mother
also sought the right to designate the children’s primary residence and to obtain child support
from Father. Both parents alleged their requested modification was in the best interest of their
daughters.
The trial court referred the parties to mediation, and they came to an agreement on a
summer visitation schedule. Their remaining issues were tried to the court. Both parents
testified, as did Z.M.C.’s counselor, the children’s paternal grandfather, and Mother’s fiancé. In
the end, the trial court signed its Order giving Father the exclusive right to designate the primary
residence of the children and ordering Mother to make monthly child support payments.
Mother appeals and raises three issues. We review these issues under an abuse of
discretion standard. See, e.g., Agraz v. Carnley, 143 S.W.3d 547, 553–54 (Tex. App.—Dallas
2004, no pet.) (“Most of the appealable issues in a family law case, including conservatorship
1
The parties subsequently learned that the 2010 agreed modification was never signed by the trial judge and so was not legally
enforceable.
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and child support, are evaluated against an abuse of discretion standard.”). Both parties appear
pro se in this Court.
In her first issue, Mother contends the Order contains contradictory terms. She points to
two express findings in the Order. The first states:
The Court finds that the material allegations in the counter-petition to modify
parent-child relationship are true and that the modification is in the best interest of
the children.
Mother contrasts the above-quoted finding with this statement later in the Order:
It has been represented to the court that there has been no pattern of child neglect
or family violence by any party to this case within two years preceding the filing
of this case or during the pendency of this case.
Mother points out that Father did allege in his counterpetition there was a pattern of child neglect
by Mother. Therefore, she contends, both of these findings cannot be true. We disagree.
First, the evidence supports the latter finding: despite the fact that both Mother and
Father pleaded a pattern of neglect, the record contains no evidence or argument supporting
either pleading. At least by inference, then, it was represented to the court that no such pattern
existed during the relevant time period. And as to the first-quoted finding, we stress the
significance of the trial court’s reference to material allegations. The court did not find that all
of Father’s allegations were true, only that the material allegations were true. An allegation is
material if it has real importance or significant consequence to the dispute. See WEBSTER’S
THIRD NEW INT’L DICTIONARY 1392 (1981). Because both parties alleged a pattern of
negligence, but neither party argued or proved such a pattern at trial, the allegations were not
material to the trial court’s conclusions.
We conclude the Order’s terms are not contradictory and do not reflect an abuse of
discretion by the trial court. We overrule Mother’s first issue.
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In her second issue, Mother contends the trial court erred by failing to file findings of fact
and conclusions of law pursuant to her request under rule 296. See TEX. R. CIV. P. 296. Mother
filed her request on August 7, 2013, some two weeks before the trial court signed the Order on
August 23, 2013.2 See id. (request to be made within twenty days of judgment being signed). A
premature request for findings of fact and conclusions of law is deemed to have been filed “on
the date of but subsequent to the time of signing of the judgment.” TEX. R. CIV. P. 306c.
Mother’s request, thus, was deemed filed on August 23, 2013, and the trial court’s findings of
fact and conclusions of law were to be filed on or before September 12, 2013. See TEX. R. CIV.
P. 297 (court’s filing to be made within twenty days after timely request is filed). The trial court
did not meet that deadline, so Mother was required to file a notice of past due findings of fact
and conclusions of law by September 23, 2013. See id. (notice to be filed and served within
thirty days of original request).3 But Mother did not file her notice until November 18, 2013,
almost two months after her deadline. By failing to file her notice timely, Mother has waived
any complaint concerning the trial court’s failure to file findings of fact and conclusions of law.
See Burns v. Burns, 116 S.W.3d 916, 922 (Tex. App.—Dallas 2003, no pet.). We overrule
Mother’s second issue.
In her third issue, Mother argues expert witness Dianne Pipkin’s testimony was
“knowingly not honest.” Mother contends Pipkin gave inaccurate and inconsistent testimony,
and she requests that “Pipkin’s credibility be impeached/inadmissible and or statements be
stricken from the record.”
2
Mother actually filed three requests for findings of fact and conclusions of law on August 7, 2013. The requests were made in accordance
with section 153.258 of the family code, rule 296 of the rules of civil procedure, and section 154.130 of the family code. See TEX. FAM. CODE
ANN. § 153.258 (West 2014); TEX. R. CIV. P. 296; TEX. FAM. CODE ANN. § 154.130 (West 2014). In this Court, Mother challenges only the
failure to respond to her rule 296 request.
3
Thirty days after August 23, 2013 was September 22, 2013, a Sunday. Accordingly, Mother’s filing was due the court’s next business
day, which was Monday, September 23, 2013. TEX. R. CIV. P. 4.
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Pipkin is Z.M.C.’s counselor; she testified she had met with all of the family members
over time. She testified that, in her opinion, the children’s primary residence should be Father’s
home:
I think that because both children feel positive in his home, are able to be calm
and comfortable in his home, and I have seen his willingness to negotiate,
cooperate, work things out, as he makes decisions for the children.
Pipkin also opined as to the parents’ cooperation with her advice in dealing with the children,
especially Z.M.C.:
I think [Father] has followed the advice extremely well. Both girls feel close to
their dad; comfortable with their dad; at home in his home.
I think [Mother] made some attempts to early on, and I could see a change in
[Z.M.C.] in the first several weeks when her mom came to some sessions. Um,
but I believe that fell by the wayside, and it is no longer true, in my opinion, that
[Z.M.C.’s] feeling some progress in the relationship with her mother.
Mother did not object to Pipkin’s testimony at trial, nor did she object to Pipkin’s
credentials as an expert or to the bases for her opinions; we question whether her complaints
concerning Pipkin were preserved. However, even if these complaints were properly before us,
we would have to conclude that Mother’s charges of intentionally false testimony are supported
by nothing more than her own speculation. Mother had ample opportunity to question Pipkin
about her opinions and the facts underlying them. Mother’s attorney conducted a lengthy cross
examination of Pipkin and used that opportunity to point out the factual issues Mother raises on
appeal, such as Pipkin’s failure to communicate with Mother concerning Z.M.C.’s treatment and
condition. But in this bench trial, the judge was the trier of fact, and she determined the
credibility of each witness and the weight to give each witness’s testimony. See Allman v.
Butcher, 314 S.W.3d 671, 674 (Tex. App.—Dallas 2010, no pet.) (“In a bench trial, the trial
court judges the credibility of the witnesses, determines the weight to be given their testimony,
and resolves conflicts and inconsistencies in the testimony.”). We may not substitute our
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judgment for that of the trial court. Id. We conclude the trial court did not abuse its discretion
by considering Pipkin’s testimony, and we overrule Mother’s third issue.
We have decided each of Mother’s issues against her. Accordingly, we affirm the trial
court’s Order.
131603F.P05
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF Z.M.C. AND On Appeal from the 199th Judicial District
R.B.C. Court, Collin County, Texas
Trial Court Cause No. 199-52980-2008.
No. 05-13-01603-CV Opinion delivered by Chief Justice Wright.
Justices Myers and Evans participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Stephen D. Crawford recover his costs of this appeal from
appellant Devyn M. Crawford.
Judgment entered May 26, 2015.
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