Birgit I. Kilpatrick v. Nelson Davis

Kilpatrick v. Davis TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00003-CV



Birgit I. Kilpatrick, Appellant

v.

Nelson Davis, Appellee





FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. FA92-1098-B, HONORABLE DICK ALCALA, JUDGE PRESIDING



BACKGROUND

This is an appeal of a modification of conservatorship case tried to a jury. Pursuant to a stipulated divorce decree, the parties were named joint managing conservators of their daughter. Shortly thereafter, appellee and Clark Kilpatrick (appellant's present husband and then boyfriend) were involved in a violent physical altercation. Following this brawl, appellee sought to end the joint managing conservatorship and to be appointed sole managing conservator of the child. Appellant countered, seeking the same relief. Based upon the jury's verdict, the trial court's judgment ended the joint managing conservatorship and named appellee Davis as sole managing conservator and appellant Kilpatrick as possessory conservator. We will affirm the trial court's judgment.

DISCUSSION

In her first point of error, appellant urges that the trial court improperly allowed appellee's counsel to question Clark Kilpatrick about his suspension from the Texas Department of Public Safety ("DPS"). Appellant concedes that the evidence is relevant but contends that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice. See Tex. R. Civ. Evid. 403.

The record reveals that appellee's counsel asked Mr. Kilpatrick if he had been involved in a fight with appellee. Without objection, Kilpatrick answered, "yes." Appellee's counsel then asked Kilpatrick if he had been suspended from his job as a DPS Officer. Again, without objection, Kilpatrick answered, "yes." Appellee's counsel then asked whether Kilpatrick was still under suspension. Appellant's counsel objected to this question, claiming that the probative value of the question was substantially outweighed by its unfair prejudice. See Tex. R. Civ. Evid. 403. The judge overruled the objection and allowed the witness to answer. However, even though the judge permitted inquiry into whether Kilpatrick was still under suspension, he did not allow any elaboration as to why he remained under suspension.

Because appellant objected only to the question of whether Kilpatrick was still under suspension, only the propriety of that question is properly before this court. See Tex. R. App. P. 52(a); Morales v. Chrysler Realty Corp., 843 S.W.2d 275, 277 (Tex. App.--Austin 1992, no writ).

When reviewing a trial court's decision to admit or exclude testimony pursuant to Rule 403, we employ an abuse of discretion standard. See New Braunfels Factory Outlet v. IHOP Realty Corp., 872 S.W.2d 303, 312 (Tex. App.--Austin 1994, no writ). A reviewing court may only reverse a trial court's evidentiary decision when the court acted in an unreasonable or arbitrary manner without reference to any guiding principles. A reviewing court may not reverse for abuse of discretion simply because it disagrees with the trial court's decision if that decision was within the trial court's discretionary authority. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Moreover, a reviewing court should not reverse a judgment unless the error, if any, was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. See Tex. R. App. P. 81(b); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

We hold that the trial court acted within its discretion in allowing the testimony as to whether Kilpatrick was still under suspension. The trial judge noted that the question was probative as to the stability of the Kilpatrick home and that the question posed minimal, if any, prejudice. Moreover, concerned about potentially unfair prejudice and confusion of the issues, the trial judge would not allow any further inquiry into why Kilpatrick was still under suspension. Thus, it seems the trial court was mindful of the balance between probative value and unfair prejudice. We cannot say that the court abused its discretion by overruling the objection and admitting evidence that appellant's husband remained under suspension. We overrule appellant's first point of error.

In her second point of error, appellant complains that the trial court should have granted her a new trial because the evidence was legally insufficient to support the jury's verdict that appellee should be named sole managing conservator. In deciding a legal sufficiency point of error that attempts to overcome an adverse fact finding as a matter of law, we must first consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. If there is some evidence in support of the finding, the point of error must fail. If there is no evidence to support the finding, we must then examine the entire record to see if the contrary proposition has been established as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 688, 690 (Tex. 1989); Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982); Texas & N.O.R. Corp. v. Burden, 203 S.W.2d 522, 528-31 (Tex. 1947); see William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 523 (1991); Michol O'Connor, Appealing Jury Findings, 12 Hous. L. Rev. 65, 78-80 (1974).

The jury charge contained instructions that the joint managing conservatorship could be replaced by a sole managing conservatorship only if (1) the circumstances of either parent or the child have so materially and substantially changed since the date of the divorce decree that the decree has become unworkable and inappropriate under the circumstances, and (2) a sole managing conservatorship would be a positive improvement for and in the best interests of the child. See former Tex. Fam. Code Ann. § 14.081. ⁽¹⁾ In questions one and two the jury found that the evidence had established both criteria. In question three the jury answered that appellee should be named sole managing conservator. The trial court rendered judgment based on the jury's verdict.

In support of her legal insufficiency claim, appellant lists evidence adduced at trial favorable to her position. However, upon reviewing the record, we find much of this evidence to be controverted. Because the record contains some probative evidence in support of the jury's answer to question three, we cannot say that there is no evidence in support of the verdict or that the evidence is legally insufficient. Considering only the evidence and inferences in support of the verdict, we hold that the record contains some evidence in support of the jury's determination that appellee should be named sole managing conservator. Therefore, we must overrule appellant's second point of error.

In her third point of error, appellant argues that the trial court erred in establishing visitation times for the possessory conservator. The court ordered that appellant's visitation times shall extend from the end of the school day on the second, fourth and fifth Friday of each month until 6:00 p.m. the following Sunday and from 6:00 p.m. until 8:00 p.m. on each Wednesday of the regular school term. Appellant alleges error in that (1) her weekend visitation ends at 6:00 p.m. Sunday and not on Monday mornings when school begins, and (2) her Wednesday evening visitation begins at 6:00 p.m. and not earlier in the day when school ends.

Times of possession are governed by guidelines in the Family Code (the "Code"). Tex. Fam. Code Ann. §§ 14.032, 14.033 (West Supp. 1995). ⁽²⁾ The statutory standard possession order provides that, in the absence of an election by the possessory conservator, visitation times extend from 6:00 p.m. on the first, third and fifth Friday of each month until 6:00 p.m. the following Sunday and from 6:00 p.m. until 8:00 p.m. on each Wednesday of the regular school term. Tex. Fam. Code Ann. § 14.033(c) (West Supp. 1995).

Appellant argues that pursuant to § 14.033(i) of the Code, the trial court should have allowed her to pick up the child from school Wednesday afternoons and take her to school Monday mornings. See Tex. Fam. Code Ann. § 14.033(i) (upon election of possessory conservator, court may deviate from standard possession order). Appellant alleges in her brief that, before or at the time of the modification order, she made an election to deviate from the standard possession order. However, she provides no references to the record indicating when she made such an election. Moreover, our search of the record fails to reveal any election. Therefore, we must assume that there was no affirmative election and that the trial court adhered to the standard possession order. ⁽³⁾ See Tex. R. App. P. 50(d); Elam v. State, 841 S.W.2d 937, 940 (Tex. App.--Austin 1992, no pet.) (appellate court cannot accept as fact either allegations or assertions in appellate brief which are not supported by the record).

There is a rebuttable presumption that the standard possession order provides the possessory conservator with the minimum reasonable possession of the child and that the order is in the child's best interests. See Tex. Fam. Code Ann. § 14.033(k) (West Supp. 1995); Voros v. Turnage, 856 S.W.2d 759, 761 (Tex. App.--Houston [1st Dist.] 1993, writ denied). We hold that appellant has not demonstrated that the trial court erred in the visitation schedule that it ordered. Moreover, § 14.033(i) provides that the trial court may deviate from the standard order if the party makes an election. Even if appellant did make an election, she has not shown that the trial court abused its discretion in failing to deviate from the standard order in accordance with her request. See Voros, 856 S.W.2d at 763. Therefore, we overrule appellant's third point of error.

CONCLUSION

Having overruled all of appellant's points of error, we affirm the trial court's judgment.

Marilyn Aboussie, Justice

Before Justices Powers, Aboussie and Kidd

Affirmed

Filed: January 10, 1996

Do Not Publish

1.   The statute has since been amended, Act of June 14, 1989, 71st Leg., R.S., ch. 371, § 7, 1989 Tex. Gen. Laws 1465, amended by Act of April 20, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 174, eff. April 20, 1995 (current version at Tex. Fam. Code Ann. § 156.202).  However, these events took place before April 20, 1995 and are governed by the prior version of the statute in effect at that time. We cite to the former statutes throughout the opinion.

2. These statutes have since been repealed. Act of June 18, 1993, 73d Leg., R.S., ch. 766, §§ 4 & 5, 1993 Tex. Gen. Laws 2991-96, repealed by Act of April 20, 1995, 74th Leg., R.S., ch. 20, § 2(1), 1995 Tex. Gen. Laws 282, eff. April 20, 1995.  (See current version Tex. Fam. Code Ann. § 153.311 et seq.).

3.   In fact, the court did deviate slightly from the standard order in that (1) weekend possessions begin at the end of the school day Fridays, and not at 6:00 p.m. Fridays, and (2) the weekend possessions begin on the second, fourth, and fifth Friday, and not the first, third and fifth Friday of the month. Appellant does not complain about these deviations. The instant order actually provides appellant with more visitation than the standard order.

Code (the "Code"). Tex. Fam. Code Ann. §§ 14.032, 14.033 (West Supp. 1995). ⁽²⁾ The statutory standard possession order provides that, in the absence of an election by the possessory conservator, visitation times extend from 6:00 p.m. on the first, third and fifth Friday of each month until 6:00 p.m. the following Sunday and from 6:00 p.m. until 8:00 p.m. on each Wednesday of the regular school term. Tex. Fam. Code Ann. § 14.033(c) (West Supp. 1995).

Appellant argues that pursuant to § 14.033(i) of the Code, the trial court should have allowed her to pick up the child from school Wednesday afternoons and take her to school Monday mornings. See Tex. Fam. Code Ann. § 14.033(i) (upon election of possessory conservator, court may deviate from standard possession order). Appellant alleges in her brief that, before or at the time of the modification order, she made an election to deviate from the standard possession order. However, she provides no references to the record indicating when she made such an election. Moreover, our search of the record fails to reveal any election. Therefore, we must assume that there was no affirmative election and that the trial court adhered to the standard possession order. ⁽³⁾ See Tex. R. App. P. 50(d); Elam v. State, 841 S.W.2d 937, 940 (Tex. App.--Austin 1992, no pet.) (appellate court cannot accept as fact either allegations or assertions in appellate brief which are not supported by the record).

There is a rebuttable presumption that the standard possession order provides the possessory conservator with the minimum reasonable possession of the child and that the order is in the child's best interests. See Tex. Fam. Code Ann. § 14.033(k) (West Supp. 1995); Voros v. Turnage, 856 S.W.2d 759, 761 (Tex. App.--Houston [1st Dist.] 1993, writ denied). We hold that appellant has not demonstrated that the trial court erred in the visitation schedule that it ordered. Moreover, § 14.033(i) provides that the trial court may deviate from the standard order if the party makes an election. Even if appellant did make an election, she has not shown that the trial court abused its discretion in failing to deviate from the standard order in accordance with her request. See Voros, 856 S.W.2d at 763. Therefore, we overrule appellant's third point of error.

CONCLUSION

Having overruled all of appellant's points of error, we affirm the trial court's judgment.

Marilyn Aboussie, Justice

Before Justices Powers, Aboussie and Kidd

Affirmed

Filed: January 10, 1996

Do Not Publish

1.   The statute has since been amended, Act of June 14, 1989, 71st Leg., R.S., ch. 371, § 7, 1989 Tex. Gen. Laws 1465, amended by Act of April 20, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 174, eff. April 20, 1995 (current version at Tex. Fam. Code Ann. § 156.202).  However, these events took place before April 20, 1995 and are governed by the prior version of the statute in effect at that time. We cite to the former statutes throughout the opinion.

2. These statutes have since been repealed. Act of June 18, 1993, 73d Leg., R.S., ch. 766, §§ 4 & 5, 1993 Tex. Gen. Laws 2991-96, repealed by Act of April 20, 1995, 74th Leg., R.S., ch. 20, § 2(1), 1995 Tex. Gen. Laws 282, eff. April 20, 1995.  (See current version Tex. Fam. Code Ann. § 153.311 et seq.).

3.   In fact, the court did deviate slightly from the standard order in that (1) weekend possessions begin at the end of the school day Fridays, and not at 6:00 p.m. Fridays, and (2) the weekend possessions begin on the second, fourth, and fifth Friday, and not the first, third and fifth Friday of the month. Appellant does not complain about these deviations. T