Jessica Pullin Cancino v. Juan Manuel Cancino ( 2015 )


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  •                              NUMBER 13-13-00124-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    JESSICA PULLIN CANCINO,                                                      Appellant,
    v.
    JUAN MANUEL CANCINO,                                                           Appellee.
    On appeal from the 135th District Court
    of Refugio County, Texas.
    MEMORANDUM OPINION
    Before Justices Garza, Benavides, and Perkes
    Memorandum Opinion by Justice Benavides
    By two issues, appellant, Jessica Cancino appeals the trial court’s determination
    of custody of her two minor children.     Appellant argues: (1) the trial court’s delayed
    findings of fact and conclusions of law did not allow her to effectively present her appeal
    or ask for amended and additional findings of fact and conclusions of law; and (2) the trial
    court’s award of custody to her ex-husband was not in the children’s best interest. We
    affirm.
    I.     BACKGROUND
    Jessica and Juan Cancino married on September 3, 2010. Their two children
    were born prior to their marriage1.               Juan filed for divorce on July 1, 2011.   After their
    separation in 2011, the Texas Department of Family and Protective Services (“CPS”)
    investigated Jessica for allegations of drug use and neglect of her children. While under
    investigation, Jessica had to complete substance abuse counseling, have supervised
    visits with her children, and attend anger management classes and programs.                  CPS did
    not investigate Juan.
    On July 7, 2011, both parties signed a Rule 11 Agreement that named them joint
    managing conservators of their children.                    Juan and Jessica agreed to a modified
    possession order in which each parent would get the children on a four-day rotating
    schedule, which coincided with their days off from work. Jessica was to continue to
    abide by the CPS requirements until they were terminated.
    In the summer of 2011, Jessica began dating Preston Mascorro, who was
    incarcerated in the Texas Department of Criminal Justice for murder and other serious
    offenses.        Based on conversations with his children, Juan determined they knew about
    Mascorro’s incarceration and they were told by Jessica to write letters to him and speak
    on the phone with him. In addition, Jessica had taken the children on trips to Amarillo to
    visit Mascorro at his prison unit.           Upon learning this information, Juan asked the trial
    1   Juan and Jessica’s two children were born in 2008 and 2009.
    2
    court for a modification to the Rule 11 Agreement, specifically requesting that the children
    have no contact with Mascorro. The trial court granted Juan’s request.
    The parties later participated in a bench trial to determine custody of the children.
    Juan and Jessica both testified.      At the conclusion of the trial, the trial court named Juan
    and Jessica joint managing conservators and granted Juan the exclusive right to
    determine the primary residence of the children.             Jessica was named possessory
    conservator and ordered to pay child support in the amount of $600.32 monthly.                The
    trial court also included an injunction in its final orders, issued on December 14, 2012,
    prohibiting the children from seeing, hearing from, receiving information about, or
    communicating with Mascorro.
    On January 3, 2013, Jessica filed a request with the trial court for findings of fact
    and conclusions of law.      On February 7, 2013, she filed a past due notice for findings of
    fact and conclusions of law.      Although the trial court still had not filed its findings of fact
    and conclusions of law, Jessica filed a notice of appeal on March 3, 2013.           On June 11,
    2013, this Court abated the appeal and ordered the trial court to make its findings and
    conclusions.      On June 27, 2013, the trial court filed its findings of fact and conclusions
    of law.     Jessica’s appeal was reinstated on July 15, 2013, and a supplemental record
    was submitted by the district clerk’s office.    Jessica did not file her brief until September
    18, 2013.
    II.    BELATED FINDINGS OF FACT AND CONCLUSIONS OF LAW
    By her first issue, Jessica argues that she was harmed by the trial court’s delayed
    findings of fact and conclusions of law by not being able to properly present her appeal
    and not being able to request amended or additional findings.
    3
    A.     Standard of Review
    When the trial court files belated findings, the only issue is whether the appellant
    was harmed.       Robles v. Robles, 
    965 S.W.2d 605
    , 610 (Tex. App.—Houston [1st Dist.]
    1998, pet. denied). Without harm, “litigants have no remedy if a trial court files untimely
    findings and conclusions.”      
    Id. “Injury may
    be in one of two forms: (1) the litigant was
    unable to request additional findings, or (2) the litigant was prevented from properly
    presenting his appeal.”       
    Id. (citing Jefferson
    County Drainage Dist. v. Lower Neches
    Valley Auth., 
    876 S.W.2d 940
    , 956-60 (Tex. App.—Beaumont 1994, writ denied)); see
    also Morrison v. Morrison, 
    713 S.W.2d 377
    , 381 (Tex. App.—Dallas 1986, writ dism’d).
    If harm is shown, “the appellate court may abate the appeal so as to give the appellant
    the opportunity to request additional or amended findings in accordance with the rules.”
    
    Id. (citing McShan
    v. Pitts, 
    538 S.W.2d 266
    , 266 (Tex. Civ. App.—San Antonio 1976, no
    writ) (per curiam)).
    B.     Discussion
    Appellant alleges she was harmed by the delay in the filing of the trial court’s
    findings of fact and conclusions of law because she had to “guess at the specific reason
    why the trial court awarded Juan primary custody of the children.” However, a review of
    the procedural timeline in this case shows the opposite.
    By the time her brief was filed with this Court, the findings of fact and conclusions
    of law had been on file for almost three months.         Jessica had submitted no previous
    briefs.    She did not have to “guess” at the reasons the trial court ruled against her
    because they were available to her when she prepared her appellate brief.
    4
    Jessica also alleges that she was harmed because she was unable to request
    amended or additional findings of fact or conclusions of law.    Under Texas Rule of Civil
    Procedure 298, any party can ask for specified additional or amended findings of fact or
    conclusions of law within 10 days after the original findings are filed. See TEX. R. CIV. P.
    § 298. The initial findings were filed by the trial court on June 27, 2013; therefore, any
    party could have requested specific additional findings before July 8, 2013, but neither
    party did.    Jessica’s appeal was not reinstated by this Court until July 15, 2013.   Even
    after July 15, 2013, either party could have requested additional findings.    
    Robles, 965 S.W.3d at 611
    (“a trial court may file additional findings even after it loses plenary power
    to affect the judgment.”) (citing Morrison v. Morrison, 
    713 S.W.2d 377
    , 381 (Tex. App.—
    Dallas 1986, writ dism’d).     The “failure of a party to request additional or amended
    findings or conclusions waives the party’s right to complain on appeal about the presumed
    finding.”    Gentry v. Squires Constr., Inc., 
    188 S.W.3d 396
    , 408 (Tex. App—Dallas 2006,
    no pet.). Therefore, because Jessica’s brief was filed months after the trial court issued
    its findings and conclusions and she did not request any additional findings from the trial
    court at any time, we cannot say she was harmed by the trial court’s untimely findings.
    III.   FINDINGS AGAINST THE BEST INTEREST OF THE CHILD
    By her second issue, Jessica argues that the trial court erred when it named Juan
    the custodial parent.
    A.       Standard of Review and Applicable Law
    In cases involving child custody, the “judgment of the trial court will be reversed
    only when it appears from the records as a whole that the court has abused its discretion.”
    Gillespie v. Gillespie, 
    644 S.W.2d 449
    , 451 (Tex. 1982). The “test for abuse of discretion
    5
    is whether the trial court acted without reference to any guiding rules or principles; in other
    words, whether the act was arbitrary or unreasonable.”          In re H.S.N., 
    69 S.W.3d 829
    ,
    831 (Tex. App.—Corpus Christi 2002, no pet.) (citing Worford v. Stamper, 
    801 S.W.2d 108
    , 109 (Tex. 1990)).
    “The trial court is given wide latitude in determining the best interests of a minor
    child.”    
    Gillespie, 644 S.W.2d at 451
    (citing Leithold v. Plass, 
    413 S.W.2d 698
    , 701 (Tex.
    1967)).     The best interest of the child shall always be the primary consideration of the
    court in determining the issues of conservatorship and possession of and access to the
    child.    TEX. FAM. CODE ANN. § 153.002 (West, Westlaw through 2013 3d C.S.). The
    “trial court’s judgment regarding what serves the best interest of the child with regard to
    child support and visitation, specifically the establishment of terms and conditions of the
    conservatorship, is a discretionary function of the trial court and will only be reversed upon
    a determination that the trial court has abused its discretion.”     In re. 
    H.S.N., 69 S.W.3d at 831
    (citing MacCallum v. MacCallum, 
    801 S.W.2d 579
    , 582 (Tex. App.—Corpus Christi
    1990, writ denied)).     “This is because the trial court is in the best position to observe the
    demeanor and personalities of the witnesses and can feel forces, powers, and influences
    that cannot be discerned by merely reading the record.”           
    Id. (citing In
    re T____, 
    715 S.W.2d 416
    , 418 (Tex. App.—Dallas 1986, no writ)).
    There are numerous factors the trial court can use to determine what is in the best
    interest of a child.   Included in these are:
    “(A) the desires of the child; (B) the emotional and physical needs of the
    child now and in the future; (C) the emotional and physical danger to the
    child now and in the future; (D) the parental abilities of the individuals
    seeking custody; (E) the programs available to assist these individuals to
    promote the best interests of the child; (F) the plans for the child by these
    6
    individuals or by the agency seeking custody; (G) the stability of the home
    or proposed placement; (H) the acts or omissions of the parent which may
    indicate that the existing parent-child relationship is not a proper one; and
    (I) any excuse for the acts of omissions of a parent.”
    Holley v. Adams, 
    544 S.W.2d 367
    , 372 (Tex. 1976).
    B.       Discussion
    The trial court determined the issues of child custody and child support after a
    bench trial on those issues.      Both Jessica and Juan testified at the bench trial. Both
    attorneys and the trial judge questioned them.        Juan testified that he has had a stable
    job for six years. Juan has a work schedule that allows him to work four days on and
    four days off.    Juan’s mother cares for the children when he cannot.           Juan testified
    generally about a CPS case against Jessica regarding substance abuse and neglect
    towards her children. As a result of the investigation, Jessica had to take substance
    abuse treatment classes, anger management classes, and have supervised visitation with
    her children.    Juan testified at length about Jessica’s boyfriend, Mascorro.       According
    to Juan, Mascorro has called Juan multiple times from prison and threatened him.          Juan
    also testified that his children said that Jessica has told them to speak to Mascorro on the
    phone and in letters in violation of the trial court’s order.   Juan felt he was the parent who
    could best care for his children.
    Jessica also testified at the bench trial. She told the trial court she also has a
    “four-day on” and “four-day off” work schedule as well.         She met Mascorro through his
    brother after he was incarcerated. She stated she had gone to see him thirty to forty
    times since they met in 2011. She did not believe the prior injunction protecting her
    children was necessary.      She also stated that if the trial court imposed an injunction in
    7
    its final order, she would not want to obey the injunction but would for her children.
    Jessica testified that Mascorro could be a father-figure to her children and that she plans
    to marry him at some point.       Jessica also told the trial court the current visitation
    schedule would not work because it fatigues her children.
    The trial court issued findings of fact and conclusions of law in determining Juan
    to be the primary conservator.       It is clear from those findings that the trial court
    considered Jessica’s investigation by CPS as a determining factor. The trial court also
    explicitly stated that Jessica’s relationship with Mascorro was a relevant factor in its
    determination. The trial court found that Jessica was “not acting in the best interest of
    the children when she allowed them to have contact with Preston Mascorro.” Because
    Jessica told the court she planned to continue her relationship, the trial court made an
    appropriate determination to place the children with their father.
    Since the trial court issued findings of fact and conclusions of law that spell out the
    reasons for its decision, and because these reasons are clear, supported by the record,
    and not arbitrary or unreasonable, Jessica has not shown that the trial court abused its
    discretion.   See In re 
    HSN, 69 S.W.3d at 831
    .
    IV.    CONCLUSION
    We affirm the trial court’s judgment.
    GINA M. BENAVIDES,
    Justice
    Delivered and filed the
    7th day of May, 2015.
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