Gonzalez, Cleotilde v. Gonzalez, Tereso

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CLEOTILDE GONZALEZ,                             Appellant, v. TERESO GONZALEZ,                             Appellee.

' ' ' ' '

No. 08-01-00453-CV Appeal from the 388th District Court of El Paso County, Texas (TC#2000CM676)

MEMORANDUM OPINION

This is an appeal from a final decree of divorce.  We affirm.

Factual and Procedural Background

Tereso Gonzalez filed a petition for divorce from Cleotilde Gonzalez on the grounds of insupportability and cruelty.  Cleotilde filed a counter-petition, seeking a divorce on the same grounds.  Both parties sought to be appointed as sole managing conservator of their three children, Israel, Reina, and Eden. Pending the final hearing, Tereso was given temporary primary custody of Israel and Reina; Cleotilde was given primary custody of Eden.

The trial court granted the divorce on the ground of insupportability.  The court also appointed the parties joint managing conservators of the children and gave Tereso primary custody.  Cleotilde was ordered to pay $100 in child support for six months, and $210 per month thereafter.

The parties owned two houses.  In dividing the marital estate, the court awarded the smaller home and its furnishings to Cleotilde and the larger home and its furnishings to Tereso.  In accordance with the parties= wish, the court awarded each party the cars that were in his or her possession. The court divided Tereso=s retirement plan equally between the parties, but awarded Tereso=s thrift savings plan to the children.

Cleotilde appeals pro se, challenging the trial court=s decisions on conservatorship and division of the marital estate.  She also argues that the trial court should not have allowed certain witnesses to testify.

Standard of Review

Although Cleotilde filed a request for findings of fact and conclusions of law, she did not file a notice of past due findings of fact and conclusions of law when the court failed to make the findings and conclusions. See Tex. R. Civ. P. 297. Accordingly, we presume that the trial court made implied findings that support its decisions.  Brown v. Comm=n for Lawyer Discipline, 980 S.W.2d 675, 678-79 (Tex. App.--San Antonio 1998, no pet.).

A trial court=s decisions regarding conservatorship and property division are reviewed for an abuse of discretion.  Sandone v. Miller-Sandone, 116 S.W.3d 204, 205 (Tex. App.--El Paso 2003, no pet.).  A trial court abuses its discretion when it acts arbitrarily or unreasonably.  Id. at 206.  The mere fact that the trial court may have decided a matter differently than an appellate court does not demonstrate an abuse of discretion.  Id.  Instead, we apply a two-pronged inquiry to determine whether the trial court abused its discretion.  First, did the trial court have sufficient information upon which to exercise its discretion?  Second, did the trial court err in its application of discretion?  Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.--El Paso 1998, no pet.).

To answer the first question, we apply the traditional sufficiency review standards.  Id. A trial court=s implied findings may be challenged on appeal in the same manner as jury findings.  Brown, 980 S.W.2d at 679. When a party attacks the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence establishes that issue as a matter of law.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). We examine the record for evidence to support the adverse finding, ignoring all evidence to the contrary. If there is no evidence to support the adverse finding, we examine the entire record to determine if the contrary proposition was established as a matter of law.  Id.  When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.  Id. at 242.  We consider and weigh all the evidence, and set aside the decision only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.  Id.

To determine whether the court erred in its application of discretion, we consider whether, based on the evidence in the record, the trial court made a reasonable decision.  Lindsey, 965 S.W.2d at 592.  We defer to the trial court to resolve conflicts in the evidence and to determine the weight to be given the testimony.  Bates v. Tesar, 81 S.W.3d 411, 425 (Tex. App.--El Paso 2002, no pet.).  AThe trial court is in the best position to observe the demeanor and personalities of the witnesses and can >feel= the forces, powers, and influences that cannot be discerned by merely reading the record.@  Id. at 424.

Conservatorship

Cleotilde argues that the court should have awarded her primary custody of the children because Tereso had a history of domestic violence against her and because she had been the primary caretaker of the children.

Relevant Evidence

In the trial court, Cleotilde made many allegations against Tereso.  For example, she and her mother stated that he referred to Reina as Awhore@ and Israel as Ajack ass.@ They also claimed that Tereso ran over Eden=s foot with his vehicle.

Cleotilde testified that Tereso physically abused her throughout their marriage, but she did not pursue criminal proceedings against him until after an incident in 1998.   Tereso pleaded guilty to a criminal offense arising from that incident.  He testified, however, that he was not really guilty and that he pleaded guilty on the advice of counsel.    At the time of the divorce hearings, two criminal charges were pending against Tereso, based on complaints of abuse by Cleotilde.  Tereso denied that he was guilty of either of those charges.

One of Tereso=s friends testified that he got to know Tereso while Tereso was coaching soccer.  He testified that Tereso interacted well with his own children, the other children that he coaches, and the other coaches.  He also testified that Tereso is not violent or aggressive.

Tereso presented the testimony of Richard Soltero, an El Paso Police Officer to whom each party had made complaints against the other.  He testified that he had to Apacify@ Cleotilde about three times when she reported that the children were in physical danger.  On each occasion, the department followed up on her reports, but was unable to verify them. Although both of the Gonzalezes gave Officer Soltero difficulty, Cleotilde was more difficult.  Among the reports made by Cleotilde were that Tereso bit the children, that he threatened to take all the children away from her, and that he forced one of the children to engage in sports, resulting in bruises on his legs.

Dr. Rodolfo Basurto was ordered by the court to conduct preliminary psychological assessments of the children.  He testified that the children did not express any distress at being separated from one another.  His overall impression was that all the children were Avery content about their life.@ He did not diagnose any of the children with a disorder, but he did recommend counseling to help them cope with the divorce.

The trial judge interviewed all three children.  The youngest child, Eden, was seven-years-old at the time of the proceedings in the trial court.  He told the judge that his dad yelled more than his mom.  He also said that it was Ahard@ for him to live away from his siblings and that he missed his siblings Aa little.@

The Gonzalezes= daughter, Reina, was fifteen at the time of the proceedings in the trial court.  She told the judge that she wanted to continue living with her father.  She did not like the fact that her mother would take her to the police station.  She stated that one time her mother took her to the police because they had a fight.  Reina also stated that her mother told her bad things that her father had done to Reina, but Reina did not remember any of it.  Her mother also accused her father of brainwashing all the children.

The oldest child, Israel, was seventeen at the time of the proceedings in the trial court.   The judge allowed him some time to think about whether he would like to live with his mother or his father and inform her of his decision in writing or at a later hearing.  The record does not reflect whether Israel ever informed the judge of his decision.

After interviewing the children, the trial court appointed Esther Monty as a guardian-ad-litem to interview the children and make recommendations regarding custody.  Monty is a licensed professional counselor and a national domestic-violence counselor.

Monty recommended that Tereso have primary custody of Israel and Reina and that Cleotilde have primary custody of Eden.  She stated that putting Israel and Reina in their mother=s care would cause Aa lot of stress and they are old enough to know what they want.@  She testified that she asked the children to describe their lives with their mother and father.  Israel and Reina told her that they Ahave a very conflicting relationship with their mother.  That they argue a lot and they felt that their father was more reasonable.@ She testified that Israel admitted that when he is at his mother=s house he drinks alcohol with her friends.  Monty also expressed concern about Eden=s academic progress.  His teacher told Monty that Eden had not been following through with his homework. When Monty discussed this problem with Cleotilde, she said, A>Well, that=s just the way he is.  And the teacher is going to have to get used to him.=@ Monty recommended that Eden spend two days a week with his father in the hope that Tereso would help Eden with the homework.  Monty was aware of Tereso=s conviction and of the pending charges.  She believed that both parents were lacking in parenting skills, and she recommended parenting classes for both of them.

Discussion

The Family Code provides that in determining whether to appoint a party as a sole or joint managing conservator, a court must consider evidence of that party=s physical abuse against his or her spouse within two years preceding the filing of the suit.  Tex. Fam. Code Ann. ' 153.004(a) (Vernon Supp. 2004).  Furthermore, the court Amay not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present . . . physical . . . abuse by one parent directed against the other parent . . . .@ Id. ' 153.004(b).

Tereso=s guilty plea and conviction are not conclusive evidence that he committed physical abuse against Cleotilde.  See St. Paul Mercury Ins. Co. v. Tri-State Cattle Feeders, Inc., 628 S.W.2d 844, 847 (Tex. App.--Amarillo), writ ref=d n.r.e., 638 S.W.2d 868 (Tex. 1982) (holding that a guilty plea and conviction for theft were not conclusive evidence of theft in a civil suit to obtain insurance benefits resulting from theft).  It appears that the trial court simply determined that the evidence of abuse presented by Cleotilde was not credible and that the court therefore discounted the testimony of Cleotilde and her mother. Based on the record before us, we will not interfere with this credibility determination.  See Pena v. Pena, 8 S.W.3d 639, 639 (Tex. 1999) (noting that a trial court is vested with wide discretion in determining custody issues and upholding the appointment of joint managing conservators, even though the father did not controvert the mother=s evidence of abuse); see also Pena v. Pena, 986 S.W.2d 696, 698 (Tex. App.--Corpus Christi 1998, pet. denied).

Discounting the testimony of Cleotilde and her mother, there was ample evidence to support giving Tereso primary custody of Israel and Reina.  In particular, we note that the guardian-ad-litem recommended this result, and both Israel and Reina apparently wished to live with their father.  Cf. Tex. Fam. Code Ann. ' 153.008 (Vernon Supp. 2004) (providing that a child who is at least twelve-years-old may designate in writing the parent who will have primary custody, subject to the court=s approval).  Although there was evidence that Tereso was lacking in parenting skills and had unnecessarily involved the police and the children in his disputes with Cleotilde, that evidence is not so great as to render the trial court=s decision clearly wrong and unjust.

Siblings are not to be separated except upon a showing of clear and compelling reasons.  In re De La Pena, 999 S.W.2d 521, 535 (Tex. App.--El Paso 1999, no pet.); see also Tex. Fam. Code Ann. ' 153.251(c) (Vernon 2002) (AIt is preferable for all children in a family to be together during periods of possession.@). Therefore, because Tereso was given primary custody of Israel and Reina, Cleotilde must show clear and compelling reasons why Tereso should not also be given primary custody of Eden.  Cleotilde has not pointed to any such reasons.

We conclude that the evidence is legally and factually sufficient to support the trial court=s decision to award primary custody of the children to Tereso.  We also conclude that the decision was not an abuse of discretion.

Property Division

Cleotilde argues that the trial court erred by awarding the thrift savings plan to the children.  Cleotilde=s counsel did not object when the trial court orally rendered that ruling, nor did Cleotilde file any post-judgment motions challenging the ruling.  Therefore, this issue is not preserved for review.  See Tex. R. App. P. 33.1(a)(1).

Cleotilde also argues that the trial court should have awarded her a disproportionate share of the marital estate because Tereso was at fault in the divorce. 

The court divided Tereso=s retirement plan equally between the parties.  In her testimony before the court, Cleotilde stated that she only wanted half of the retirement plan.  The court also awarded Cleotilde the two vehicles that were in her possession.   Again, this is all that Cleotilde requested in her testimony.

Cleotilde requested the larger house that the parties owned.  The court initially announced that it would order both houses to be sold and the proceeds to be divided equally.  When Cleotilde informed the court that she did not want the houses to be sold, the court stated, AThen the father and the children move into the larger home . . . .@

A trial court may consider fault in dividing the marital estate, but is not required to do so.  Young v. Young, 609 S.W.2d 758, 762 (Tex. 1980). Under the circumstances we have just described, we conclude that the court did not abuse its discretion by not awarding Cleotilde a disproportionate share of the marital estate because of Tereso=s fault in breaking up the marriage.

Witnesses

Finally, Cleotilde argues that the trial court erred by allowing Tereso to call  Officer Soltero and Dr. Basurto as witnesses because they were not announced at the pretrial conference.  Cleotilde=s counsel objected to the testimony of these witnesses because Tereso failed to identify them as witnesses in his answer to Cleotilde=s interrogatories.  The trial court noted that both witnesses were listed in a pretrial report that was signed by a judge and filed approximately three months before the hearing. Cleotilde=s counsel denied knowing anything about the pretrial report.  The court stated that because the list was on file, it was available for counsel to review.

A party may not offer the testimony of a witness if the party failed to identify the witness in its initial response to a discovery request or in a timely supplemental response, unless the trial court finds that there was good cause for the failure or the failure would not unfairly surprise or unfairly prejudice the other party.  See Tex. R. Civ. P. 193.6(a).  In this case, the trial court could have concluded that Cleotilde was not unfairly surprised by the witnesses because the list of witnesses was on file with the court.  Moreover, it is clear that Cleotilde=s attorney had copies of Dr. Basurto=s report, and her cross-examination of both witnesses was effective.  Therefore, the record does not show that Cleotilde was unfairly prejudiced by the witnesses= testimony.

Conclusion

For the reasons stated herein, all the issues raised in this appeal are overruled, and the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

May 27, 2004

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

McClure, J., concurring

                                                      CONCURRING OPINION

I write separately because of my disagreement with the majority=s treatment of Tereso=s guilty plea and conviction of Class A misdemeanor assault.  The opinion duly notes the statutory directive that a trial court shall consider evidence of physical abuse against a spouse in determining whether to appoint a parent as a sole or joint managing conservator.  Tex.Fam. Code Ann. ' 153.004(a) (Vernon Supp. 2004).  It is quite clear from my reading of the record that Judge Macias did indeed consider the issue.  She said so more than once, albeit not in formal findings of fact.  More troublesome is the short shrift given the statutory prohibition against the appointment of joint managing conservators if credible evidence is presented of a history or pattern of abuse.  Id. ' 153.004(b).

As any seasoned family law practitioner knows, family violence claims are serious allegations.  Sadly, they are also frequently utilized as leverage in contested custody disputes. The courts have struggled with just what constitutes Aa history or pattern of . . . abuse.@ Tex.Fam.Code Ann. ' 153.004(b).  The concept of physical abuse Aremains subject to wide variations and varying interpretations.@^[1] Pena v. Pena, 986 S.W.2d 696, 699 (Tex.App.--Corpus Christi 1998), pet. denied per curiam, 8 S.W.3d 639 (Tex. 1999) (disapproving consideration of provocation in determining the existence of a history or pattern of domestic violence.)  Where the parties tell different versions of a confrontation, the trial court must determine the weight and credibility of the evidence.  Lowth v. Lowth, No. 14-03-00061-CV,  2003 WL 22996939, at *5 (Tex.App.--Houston [14th Dist.] December 23, 2003, pet. denied) (not designated for publication).  In so doing, it may believe one witness and disbelieve another. Clark v. Funk, No. 08-97-00634-CV, 2000 WL 1203942, at *5 (Tex.App.--El Paso August 24, 2000, no pet.) (not designated for publication).  Where there is nothing in the record to demonstrate that the trial court did not consider the testimony of family violence, the trial court rarely abuses its discretion in granting joint managing conservatorship.  Jackson v. Jackson, No. 05-01-01719-CV, 2002 WL 31513388, at *1 (Tex.App.--Dallas November 13, 2002, no pet.) (not designated for publication) (noting that nothing indicated trial court did not consider wife=s testimony and concluding that her testimony did not show as a matter of law a history or pattern of abuse).

The record before us does not contain the judgment of conviction.  Cleotilde offered Respondent=s Exhibit 1, a computer printout of a disposition record.  The exhibit was excluded upon Tereso=s objection that an improper predicate had been laid.  Cleotilde does not complain on appeal that the exhibit was erroneously excluded.  Cleotilde then asked the trial court to take judicial notice of the conviction.  Although Judge Macias declined to do so, she indicated she would allow counsel the opportunity to retrieve the judgment upon recess. She ruled similarly with regard to the two felony assault charges which were  pending at the time of the trial.  Cleotilde does not complain that insufficient time was allotted.  It simply was not done.  We are left then with Tereso=s testimony, which was elicited by Cleotilde=s own attorney:

Q:  Let me call your attention to your plea of guilty on family violence on the incident that occurred 12-12-98, do you remember?

A:  Let me answer that.  I was not guilty.  The other lawyer told me to declare guilty.^[2]  I was not guilty.

Q:  Sir, isn=t it a fact that you made a plea of guilty on 10-27-99 to Case 990C00749.  Yes or no?

A:  No, because--

[Counsel] May I approach, Your Honor?

A:  --the other lawyer told me to do that.

Q:  Mr. Gonzalez, let me show you what has been marked Respondent=s No. 1.  See if you recognize any of that.

A:  Yes, but in my heart I didn=t do anything.

.    .    .

Q:  But you served probation, is that correct?

A:  Yes.

Q:  Somebody that serves probation is because the court has found them guilty; is that correct?

A:  Yes. 

Tereso also stipulated to the pendency of the two felony indictments.

The majority dismisses this testimony by summarily deciding that Tereso=s guilty plea and conviction are not conclusive evidence that he committed physical abuse against Cleotilde.  In support of this conclusion, it references a Supreme Court opinion which held that a guilty plea and conviction for theft were not conclusive evidence of theft in a civil suit to obtain insurance benefits arising from the theft.  In that case, however, the thief was not a party to the litigation; the litigation ensued between the policy holder/victim and the insurance company.  Consequently, collateral estoppel was not an issue.  Here we are presented not with merely conflicting testimony.  We are presented with a judicial admission of guilt.  Is that enough?  The majority answers, Ano.@

A judicial admission that is clear and unequivocal has conclusive effect and bars the admitting party from later disputing the admitted fact.  Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001).  We have held that under the doctrines of collateral estoppel and judicial admission, an agreed judgment establishes the issue in question as a matter of law.  Cortez v. Liberty Mutual Fire Ins. Co., 885 S.W.2d 466, 470 (Tex.App.--El Paso 1994, writ denied).  The same is true of a guilty plea giving rise to a judgment of conviction.  See Johnston v. American Medical International, 36 S.W.3d 572 (Tex.App.--Tyler 2000, pet. denied).  There, a neurologist pled guilty to eight counts of simple assault by contact, all Class C misdemeanors.  He later filed suit against various doctors and medical facilities alleging a conspiracy to concoct a scheme whereby he was falsely accused of sexual misconduct with patients so that he would be discredited and forced to quit his practice.  The defendants sought summary judgment, claiming that collateral estoppel arising from Dr. Johnston=s guilty plea barred his claims.  In affirming, the appellate court noted that a prior conviction may work a collateral estoppel in a subsequent proceeding if the identical issues for which estoppel is sought were litigated and directly determined in the prior criminal proceeding.  Id. at 576.  In that event, the convicted party is estopped from attacking the judgment or any issue necessarily decided by the guilty plea. Id.,  citing Francis v. Marshall, 841 S.W.2d 51, 54 (Tex.App.--Houston [14th Dist.] 1992, no writ).  This means, of course, that the convicted party may not introduce testimony to controvert a judicial admission.  Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989).  However, the party opposite must nevertheless preserve error by objecting to the introduction of controverting evidence.  Id.  The holding of the Supreme Court is particularly applicable here.

In the present case, Vise failed to object to the controverting testimony on the ground that he was relying upon Marshall=s deemed admissions. In fact, Vise actually elicited much of the contradictory evidence.  Vise has waived, therefore, his right to rely upon those admissions which were controverted by testimony admitted at trial without objection.

Id.

Similarly, Cleotilde failed to object when Tereso testified that he pled guilty to assault only because his lawyer told him to and that Ain his heart@ he knew he was not guilty.  In fact, her counsel elicited this very testimony.  Consequently, Judge Macias was presented with conflicting evidence and, as the fact finder, she was required to determine the weight and credibility of the evidence.  Therefore, although I disagree with the majority=s broad statement that Tereso=s plea of guilt and subsequent conviction are not conclusive evidence of physical abuse, I concur because the error was not preserved.

ANN CRAWFORD McCLURE, Justice

May 27, 2004

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^[1]  With an eye toward resolving the definitional issue, the Legislature amended section 153.004 this past session.  While it applies only to orders rendered on or after its effective date, the text and subsequent commentaries are enlightening:

(f) In determining under this section whether there is credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by a  parent directed against the other parent, a spouse, or a child, the court shall consider whether a protective order was rendered under Chapter 85, Title 4, against the parent during the two-year period preceding the filing of the suit or during the pendency of the suit.

Tex.Fam.Code Ann. ' 153.004(f) (Vernon Supp. 2004), amended by 78th Leg.,  R.S., ch. 642, ' 1, 2003 Tex. Gen. Laws 2046, 2047, eff. September 1, 2003.  Well-respected commentators have noted:

The test for whether there is a Acredible evidence of a history or pattern of past or present chid neglect or physical or sexual abuse by a parent@ previously has been left to a case-by-case determination by the court.  The addition of subsection (f) provides a nonexclusive test regarding whether such a history exists.  That is, whether a protective order was rendered against the respondent in the preceding two year period.  Arguably, rendition of a single protective [order] within the past two years is not necessarily proof of a Apattern,@ but it surely is a good start on proof of a Ahistory.@

Sampson & Tindall, Tex. Fam.Code Ann. ' 153.004, Comment, p. 556 (2003).

^[2]  One would hope that Tereso was warned of the consequences of his plea.  Under federal law, he is now precluded from possessing any firearm or ammunition.  18 U.S.C. ' 922(g)(9) (It shall be unlawful for any person

who has been convicted in any court of a misdemeanor crime of domestic violence to possess any firearm or ammunition).  Under Texas law, he is prohibited from obtaining a license to carry a concealed handgun for a period of five years.  See Tex.Gov=t Code Ann. ' 411.172(a)(8) (Vernon 1998 & Supp. 2004).