DocketNumber： No. 05-85-00558-CV
Judges： Stephens, Howell, Guillot
Filed Date： 4/18/1986
Status： Precedential
Modified Date： 11/14/2024
This is an appeal from a portion of a divorce decree appointing appellee managing conservator of the parties’ minor child. Trial was to the court without a jury. Appellant contends the trial court erred (1) in finding that appellee is a fit and proper person to be appointed managing conservator, (2) in concluding that the appointment of appellee as managing conservator is in the best interest of the child, (3) in failing to consider qualifications of the respective parents without regard to the sex of the parent, (4) in finding that appellant kept pornographic materials in the child’s presence, and (5) in finding that the allegations of sexual abuse of the child made by the appellant were not substantiated by the evidence. We affirm.
Appellant’s first, fourth, and fifth points of error attack various findings of fact entered by the trial court. When addressing insufficient evidence points of error, we consider and weigh all the evidence in the case and set aside the finding only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 664, 244 S.W.2d 660, 661 (Tex.1951); Fortner v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 687 S.W.2d 8, 12 (Tex.App.—Dallas 1984, writ ref’d n.r.e.).
The record in this case indicates that appellee presented the testimony of several witnesses who testified as to appel-lee’s care of the parties’ child, as to the affection between the child and appellee, and to appellee’s fitness and qualities as a mother. A clinical psychologist’s report stated that appellee had good parenting skills. While there was testimony that ap-pellee was living with a married man, this fact alone does not disqualify appellee as managing conservator. See Tapal v. Tapal, 448 S.W.2d 560, 563 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ dism’d). There was also testimony from several witnesses that appellant kept hard-core pornographic materials out in open display in the parties’ front room and where the child could see them. We hold that there is sufficient evidence to support the trial court’s findings that appellee was a fit and proper person and that appellant kept pornographic materials in the child’s presence and these findings are not against the great weight and preponderance of the evidence as to be manifestly unjust.
Appellant presented the testimony of a family therapist concerning the possibility that appellee’s live-in male companion had sexually abused the child. The therapist testified that she reported the matter to the Child Welfare Department and wrote a letter to the Family Court Services. A counselor from the Family Court Services
appears to be well adjusted and a happy child. She does not evidence a post-traumatic syndrome. I am therefore unable to state in reasonable psychological probability that she has been mistreated or abused. However, [appellee] and her boyfriend have not made an appointment to see me and for this reason and [sic] definitive opinion on the subject of abuse is impossible.
After interviewing appellee, the psychologist wrote a second report which stated in pertinent part:
Based on my examination, I have confirmed my previously stated opinion that [the child] is well-adjusted and a happy child. She does not evidence post-traumatic syndrome as has been suggested. I have found [appellees] parenting skills to be of good quality and I do not believe that she is capable of abusing her daughter.
As the Court is aware, [appellant] has maintained from the outset that any abuse that may have occurred to [the child] is the result of mistreatment by [appellee’s male companion]. Unfortu-. nately, [appellee] has declined to invite [male companion] to participate in our study.
Appellant moved that appellee be compelled to produce her companion for an interview with the psychologist, but the record contains no formal disposition of this motion. We hold there is sufficient evidence to support the trial court’s finding that the allegation of abuse of the child was not substantiated by the evidence and this finding is not against the great weight and preponderance of the evidence as to be manifestly unjust. The trial court had the opportunity to observe the personalities and demeanor of the witnesses and to assess the validity of the allegation. Accordingly, appellant’s first, fourth, and fifth points of error are overruled.
In his second point of error, appellant contends the trial court erred in concluding that the appointment of appellee as managing conservator is in the best interest of the child. The paramount consideration in the determination of managing con-servatorship is the best interest of the child. Green v. Remling, 608 S.W.2d 905, 907 (Tex.1980); TEX.FAM.CODE ANN. § 14.07(a) (Vernon 1975). It is well settled that a trial court is given wide latitude in determining the best interests of the child and its judgment will be reversed only when it appears from the record as a whole that the court has abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). This rule is “based on the fact that the trial court is in the best situation 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.’ ” Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex.Civ.App.—Dallas 1981, no writ) (citation omitted). See Dunker v. Dunker, 659 S.W.2d 106, 109 (Tex.App.—Houston [14th Dist.] 1983, no writ). After reviewing the entire record, we conclude the trial court did not abuse its discretion in appointing appellee managing conservator. The point of error is overruled.
In his third point of error, appellant contends the trial court failed to consider the qualifications of. the respective parents without regard to the sex of the parent. Appellant argues that the trial court’s letter to counsel announcing the judgment of
The Court will grant the divorce to [ap-pellee] and the Court chooses to grant the divorce on the no fault grounds of insupportability. After reviewing all the testimony, the social study, and reports of [the psychologist], I am convinced that the child is not exhibiting any symptoms nor is there any evidence which would suggest the child has, in fact, been abused. Therefore, wife is appointed the managing conservator; husband is appointed possessory conservator with standard Dallas County visitation.
Appellant relies on Glud v. Glud, 641 S.W.2d 688, 690 (Tex.App.—Waco 1982, no writ) to support his contention. Glud, however, is distinguishable from the case at bar. In Glud, the trial court, in announcing the decision to award custody of the children to the mother, stated to the parties, “In my opinion I think it would be detrimental looking at it from a man’s standpoint, and I’m a man and father, Mr. Glud, I think it would be very difficult for a man to raise two boys like a woman can. Therefore, I’m going to name her as managing conservator of the children.” The Waco court of appeals reversed that part of the judgment naming the mother managing conservator. The court, after finding that record showed a close and loving relationship by both parents for their children and that both parents were equally capable of caring for the children and providing for their moral, physical and educational needs and well-being, concluded that the trial court’s comment affirmatively showed that the trial court’s determination of custody was based on the sex of the parents. Glud, 641 S.W.2d at 690.
In the case at bar, the trial court’s letter does not affirmatively show that the determination of custody was based on the sex of the parents. Appellant was not deprived of his right to have his qualifications as custodian of the child considered without regard to his sex. Accordingly, the point of error is overruled.
We conclude that the trial court did not abuse its discretion in determining the best interest of the child and in appointing ap-pellee managing conservator. Accordingly, the judgment is affirmed.