Donald L. Schindler v. Elizabeth M. Schindler

NUMBER 13-16-00483-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DONALD L. SCHINDLER, Appellant,
v.
ELIZABETH M. SCHINDLER, Appellee.
On appeal from the 25th District Court
of Lavaca County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant Donald L. Schindler appeals from a no-answer default final decree of
divorce. By seven issues, which we construe as two with several sub-issues, Donald
argues he is entitled to a new trial and the judge erred by denying his motion for new trial.
We affirm in part and reverse and remand in part.
I. BACKGROUND
Donald and appellee Elizabeth Schindler were married in 2001. The couple had
two children during their marriage. In February 2014, the couple ceased living together.
Elizabeth filed for divorce from Donald on September 9, 2014, asserting the marriage had
become insupportable because of discord or conflict of personalities. Donald was served
with notice of the divorce filing and request for temporary orders on September 22, 2014.
Donald did not file an answer to the divorce petition or otherwise appear in the suit. On
October 1, 2014, a hearing was held on Elizabeth’s motion for temporary orders, at which
Donald did not appear. The trial court granted Elizabeth’s motion and signed default
temporary orders on October 14, 2014. Subsequently, the court ordered the case
retained on the docket on October 16, 2015.
At a hearing on December 15, 2015, the court granted the divorce, and again
Donald was not present. Elizabeth offered into evidence her and Donald’s “Schedule F”
from their jointly filed 2013 tax return showing Donald had an approximate income of
$136,757.00 that year. She also offered into evidence testimony regarding her separate
property obtained before the marriage, her request for child support and spousal
maintenance, Donald’s separate property, their separate bank accounts, and their
separate personal property and possessions. Elizabeth testified that Donald had
exercised his visitation rights with the children as set forth in the temporary orders,
primarily on weekends, some midweek visits, and some holidays. In addition to her
testimony, she offered into evidence an appraisal for her royalty interests in property
located in Lavaca County and a proposed property division based on her testimony. The
court granted the no-answer default divorce and signed the final decree of divorce on
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June 16, 2016. Donald filed a motion for new trial on July 18, 2016, and a hearing was
held on August 16, 2016. The trial court denied the motion for new trial on August 30,
2016, and this appeal followed.
II. DISCUSSION
By seven issues, which we construe as two with several sub-issues, Donald
asserts that the trial court erred by (1) denying his motion for new trial and (2) rendering
a divorce decree that: (a) set the child support in an amount not within the guidelines; (b)
granted him only a standard possession order when he is entitled to expanded standard
visitation; (c) made Elizabeth sole managing conservator; (d) did not divide the community
property in a manner that is just and right; (e) ordered him to pay spousal maintenance
where the evidence was insufficient to establish entitlement to such payments; and (f)
granted Elizabeth injunctive relief in the absence of sufficient evidence to support such
relief and in ordering the injunctions to apply solely to him.
A. Motion for New Trial
In his first issue, Donald contends that the trial court erred in denying his motion
for a new trial.
1. Standard of Review and Applicable Law
When a default judgment is attacked by a motion for new trial, the critical question
is: “Why did the defendant not appear?” Sutherland v. Spencer, 376 S.W.3d 752, 755
(Tex. 2012) (quoting Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 574
(Tex. 2006)); see Lynch v. Lynch, 540 S.W.3d 107, 121 (Tex. App.—Houston [1st Dist.]
2017, pet. filed). We review a trial court’s decision to overrule a motion to set aside
a default judgment and grant a new trial for abuse of discretion. Dolgencorp of Tex., Inc.
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v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). The Supreme Court of Texas established
the standard for setting aside a default judgment in Craddock v. Sunshine Bus Lines, Inc.,
133 S.W.2d 124, 126 (Tex. 1939). Under the Craddock test, post-answer as well as no-
answer default judgments should be vacated and a new trial granted when the defaulting
party establishes that: (1) the failure to answer or to appear was not intentional, or the
result of conscious indifference, but was due to a mistake or an accident; (2) the motion
for a new trial sets up a meritorious defense; and (3) granting a new trial will not cause
delay or work other injury to the prevailing party. In re R.R., 209 S.W.3d 112, 115 (Tex.
2006); Craddock, 133 S.W.2d at 126. When a defaulting party meets all three Craddock-
test elements, a trial court abuses its discretion if it fails to grant a new trial. Dolgencorp,
288 S.W.3d at 926; Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994).
When as here, no findings of fact and conclusions of law are filed, the denial of motions
to set aside the default judgment and for new trial must be upheld on any legal theory
supported by the evidence. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984);
Lynch, 540 S.W.3d at 121.
2. Analysis
Beginning our analysis with the Craddock test, we must first determine whether
Donald proved that his failure to file an answer or otherwise appear in the divorce
proceedings was not intentional or the result of his conscious indifference. See Craddock,
133 S.W.2d at 126. In making our determination, we turn to Donald’s actions and
knowledge. See Lynch, 540 S.W.3d at 121 (citing Dir., State Emp. Workers’ Comp. Div.
v. Evans, 889 S.W.2d 266, 269 (Tex. 1994)). The Texas Supreme Court has held that
some excuse, although not necessarily a good one, will suffice to show that a defendant’s
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failure to file an answer was not because the defendant did not care. In re R.R., 209
S.W.3d at 115. However,
when the trial court conducts an evidentiary hearing on a motion for new
trial and the party that obtained the default judgment presents controverting
evidence at the hearing to show that the defaulted party acted intentionally
or with conscious disregard to his rights, the question of why the defaulted
party failed to answer presents a question of fact, which is resolved by the
factfinder.
Lynch, 540 S.W.3d at 122 (citations omitted). As the factfinder, the trial court may
generally believe all, none, or part of a witness’s testimony. Id. In determining if Donald’s
factual assertions are controverted, we look to all the evidence in the record. See Evans,
889 S.W.2d at 269.
At the hearing on his motion for new trial, Donald testified that he doesn’t recall
being served with divorce papers though it was “possible that [he] did receive them.” He
explained that he was suffering from depression and was seeking medical help for his
symptoms, but that until shortly before the hearing, nothing had been working. He stated
that he was unable to function for full days at a time for a long period of time, and because
of that, he was unable to participate in the divorce proceedings. He provided a note from
a psychiatrist he had been seeing for the six months prior to the hearing on his motion for
new trial.
When cross-examined, Donald noted that he received paperwork regarding the
divorce from a sheriff, but could not recall when or whether it was the petition or not. It
was also brought out through cross-examination that, during the pendency of the divorce,
Donald acted in accordance with the temporary orders that were in place, including
exercising his visitation with his children and paying Elizabeth financial support through
February 2016. Furthermore, he testified that he had been working in 2014, when the
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divorce was initiated by Elizabeth, and was able to work until November 2015, when his
depression symptoms rendered him bed-ridden; it was from November 2015, until
approximately March 2016, that he stated he was unable to work.
Not understanding a citation and then doing nothing following service does not
constitute a mistake of law that is sufficient to meet the Craddock requirements. See
Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex. 1992) (citing Butler v. Dal Tex
Mach. & Tool Co., 627 S.W.2d 258, 260 (Tex. App.—Fort Worth 1982, no writ)); In re
R.R., 209 S.W.3d at 115. Here, although Donald does not claim he did not understand
the citation, he does explain that he may have received the citation, but did nothing with
it because of his depression. 1 Donald’s testimony regarding his debilitating depression
symptoms was controverted by the elicited testimony of his ability to work, exercise his
visitation rights with his children, and maintain making payments to Elizabeth, among
other things.
After reviewing the evidence of Donald’s acts and of his knowledge, we conclude
that the trial court could have reasonably determined that Donald acted with conscious
indifference to the proceedings when he failed to answer the suit, and as a result, did not
meet the first Craddock element. See Craddock, 133 S.W.2d at 126; see also Evans,
889 S.W.2d at 269 (stating that courts look to knowledge and acts of defaulting party to
determine whether failure to answer or appear was intentional or due to conscious
indifference). Accordingly, we hold that the trial court did not abuse its discretion when it
denied Donald’s motions to set aside the default judgment and for new trial. See Lynch,
540 S.W.3d at 126–27. We overrule Donald’s first issue.
1 Donald mentioned in his testimony during the hearing that this was not his first divorce, and in
fact he understands the proceedings of a divorce.
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B. Divorce Decree
In issue two, Donald challenges the trial court’s determinations of child support,
visitation rights, conservatorship, property division, spousal maintenance, and injunctive
relief.
1. Standard of Review and Applicable Law
In a suit for divorce, “the petition may not be taken as confessed if the respondent
does not file an answer.” TEX. FAM. CODE ANN. § 6.701 (West, Westlaw through 2017 1st
C.S.). If the respondent in a divorce case fails to answer or appear, the petitioner must
present evidence to support the material allegations in the petition. In re E.M.V., 312
S.W.3d 288, 291 (Tex. App.—Dallas 2010, no pet.). Accordingly, a default judgment of
divorce is subject to an evidentiary attack on appeal. Agraz v. Carnley, 143 S.W.3d 547,
552 (Tex. App.—Dallas 2004, no pet.); see Gonzalez v. Gonzalez, 331 S.W.3d 864, 866
(Tex. App.—Dallas 2011, no pet.).
Most appealable issues in a family law case are evaluated under an abuse of
discretion standard. In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.);
Gonzalez, 331 S.W.3d at 866. With regard to issues of custody, control, possession,
child support, and visitation, we give the trial court wide latitude and will reverse the trial
court’s order only if it appears from the record as a whole that the trial court abused its
discretion. In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied); see
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Garza v. Garza, 217 S.W.3d 538,
551 (Tex. App.—San Antonio 2006, no pet.). A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner or when it acts without reference to any
guiding principles. Gonzalez, 331 S.W.3d at 866. The trial court generally does not abuse
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its discretion as long as some evidence of substantive and probative character exists to
support the trial court’s decision. Id.; see Agraz, 143 S.W.3d at 554.
Where sufficiency review overlaps the abuse of discretion standard, we engage in
a two pronged inquiry: (1) did the trial court have sufficient information upon which to
exercise its discretion; and (2) 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.). The traditional
sufficiency review comes into play with regard to the first question; however, our inquiry
cannot stop there. We must proceed to determine whether, based on the elicited
evidence, the trial court made a reasonable decision. Stated inversely, we must conclude
that the trial court’s decision was neither arbitrary nor unreasonable. Id.
a. Child Support
Under Texas law, child support is generally determined by calculating the child
support obligor’s monthly net resources and applying statutory guidelines to that amount.
See TEX. FAM. CODE ANN. §§ 154.062(a), 154.125 (West, Westlaw through 2017 1st C.S.);
see also id. §§ 154.122 (amount of support determined by child support guidelines is
presumed to be reasonable and in best interest of child), 154.123 (trial court may order
child support payments in amount other than that established by guidelines if evidence
rebuts presumption that application of guidelines is in best interest of child) (West,
Westlaw through 2017 1st C.S.); In re P.C.S., 320 S.W.3d 525, 532–33 (Tex. App.—
Dallas 2010, pet. denied). The family code sets a guideline that an obligor who has two
children should pay child support equal to twenty-five percent of the first $7,500 of his
monthly net resources. TEX. FAM. CODE ANN. §§ 154.125, 154.126(a) (West, Westlaw
through 2017 1st C.S.).
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In accordance with the guidelines, the trial court ordered Donald to pay monthly
child support of $1,842.00 for two children until the oldest child turned 18 or graduated
from high school, whichever occurred later, and thereafter, $1,473.00 per month until the
youngest child turned 18 or graduated from high school, whichever occurred later. At the
hearing, Elizabeth presented evidence and testimony that Donald was self-employed and
that, in 2013, his net annual earning potential was $136,757.00. The divorce was granted
in December 2015. Donald contends that this is the only evidence presented regarding
his resources and it was not sufficient for the trial court to make a calculation of child
support liability. We disagree. Elizabeth testified as to her knowledge of Donald’s income
and supported that testimony with evidence of his income through a tax return. Her
testimony was not mere speculation, but rather supported her contentions about Donald’s
earning potential. See Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.—
Houston [14th Dist.] 2004, no pet.) (holding that wife’s testimony that husband earned
$150,000.00 per year based on her research of his job was some evidence that he earned
over $6,000.00 per month, warranting child support for two children of twenty-five percent
of husband’s net resources under child support guidelines). Because there is evidence
of Donald’s earning potential and income, the trial court did not abuse its discretion by
requiring Donald to pay an amount of child support in accordance with the guidelines. We
overrule Donald’s second issue.
b. Possession and Visitation Order
A trial court has broad discretion to fashion the terms of a decree related to
custody, visitation, and possession. In re Doe 2, 19 S.W.3d 278, 281 (Tex. 2000);
Gillespie, 644 S.W.2d at 451; In re Marriage of Swim, 291 S.W.3d 500, 504 (Tex. App.—
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Amarillo 2009, no pet.). In matters of conservatorship, the public policy in this State is to
assure continuing contact between children and parents who have established the ability
to act in their child’s best interest, provide a safe, stable, and nonviolent environment for
the child, and encourage parents to share in their child’s development after separation or
divorce. TEX. FAM. CODE ANN. § 153.001(a)(1)–(3) (West, Westlaw through 2017 1st
C.S.); In Interest of N.P.M., 509 S.W.3d 560, 564 (Tex. App.—El Paso 2016, no pet.).
A court’s primary consideration must always be the best interests of the children.
TEX. FAM. CODE ANN. § 153.002. Where both parents are appointed as the child’s
managing conservators, the trial court specifies the rights and duties that are to be
exercised by each parent. Id. § 153.071. While the guidelines in the standard possession
order are intended to guide courts as to the minimum possession for a joint managing
conservator, there is a rebuttable presumption that the standard possession order
provides the reasonable minimum possession of a child for a parent named as a joint
managing conservator and that the order is in the child’s best interest. Id. §§ 153.251(a),
153.252(1), (2); In Interest of N.P.M., 509 S.W.3d at 564. The trial court may deviate
from the standard possession order, by rendering
an order that grants periods of possession of the child as similar as possible
to those provided by the standard possession order if the work schedule or
other special circumstances of the managing conservator, the possessory
conservator, or the child, or the year-round school schedule of the child,
make the standard order unworkable or inappropriate.
TEX. FAM. CODE ANN. § 153.253 (West, Westlaw through 2017 1st C.S.).
Donald argues specifically that he was not awarded an “expanded” standard
possession order. He points to section 153.317(a) to argue that the court should have
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granted Donald an alternative “expanded” standard possession order. See id. §
153.317(a). 2 However, Donald neglects to include section 153.317(b) in his argument:
A conservator must make an election under Subsection (a) before or at the
time of the rendition of a possession order. The election may be made:
(1) in a written document filed with the court; or
(2) through an oral statement made in open court on the record.
Id. § 153.317(b). The record does not reflect, nor does Donald present evidence of, any
election by him to be awarded an alternative standard possession order under section
153.317(a). Therefore, the trial court did not abuse its discretion by granting standard
possession.
Donald also argues that the court did not have sufficient evidence to limit his
visitation beyond the standard possession order by reducing his weekday visits from 6:00
p.m. to 8:00 p.m. on Thursday evenings to 5:00 p.m. to 6:00 p.m. on Thursdays. During
the default divorce hearing, Elizabeth testified that the change would be suitable based
on the history of their visitation schedule while the temporary orders were in place and
the need to change the exchange of the children to a public location, based on a criminal
trespass warning Donald received making Elizabeth’s residence an unacceptable
location to exchange the children. The trial court, having heard this testimony, did not
2 Section 153.317(a) states:
If elected by a conservator, the court shall alter the standard possession order under
Sections 153.312, 153.314, and 153.315 to provide for one or more of a selection of
alternative beginning and ending possession times for the described periods of possession,
unless the court finds that the election is not in the best interest of the child as described
by this section.
TEX. FAM. CODE ANN. § 153.317(a). While this statute allows for alternative visitation schedules, it does not
specifically call for “expanded” visitation.
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abuse its discretion in altering the weekday visit schedule. We overrule Donald’s third
issue.
c. Conservatorship
Section 153.071 of the Texas Family Code provides that, when both parents are
appointed as conservators of the child, the court shall specify the rights and duties of the
parents that are to be exercised by each independently, by joint agreement of the parents,
and exclusively by one parent. Id. § 153.071. Joint managing conservatorship is defined
as the sharing of the rights and duties of a parent by two parties, even if the exclusive
right to make certain decisions is awarded to one party. Id. § 101.016; see Albrecht v.
Albrecht, 974 S.W.2d 262, 265 (Tex. App.—San Antonio 1998, no pet.) (“In joint
managing conservatorship, one parent is usually given slightly greater powers than the
other parent.”); Garza, 217 S.W.3d at 553.
Here, the divorce decree names both Donald and Elizabeth as joint managing
conservators. Donald takes issue with the trial court’s order that Elizabeth shall have the
exclusive right to: (1) consent to medical, dental, and surgical treatment involving
invasive procedures; (2) consent to psychiatric and psychological treatment of the
children; and (3) make decisions concerning the children’s education. Donald
emphasizes that the only evidence on the issue of parental rights and duties were
statements from Elizabeth that the children live with her, she is their primary conservator,
and she was responsible for their educational decisions, their daily activities, and medical
decisions. The record reflects such testimony from Elizabeth. It is within the trial court’s
discretion to allocate between the parents, independently, jointly, or exclusively, all of the
remaining rights and duties of a parent as provided by Chapter 151. TEX. FAM. CODE ANN.
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§ 153.134(b)(4). Where the trial court was presented with sworn testimony of Elizabeth’s
duties as the primary conservator for their children, there was no abuse of discretion in
awarding some rights exclusively to Elizabeth. We overrule Donald’s fourth issue.
d. Community Property
Community property consists of all property, other than separate property,
acquired by either spouse during marriage. TEX. FAM. CODE ANN. § 3.002 (West, Westlaw
through 2017 1st C.S.). A trial court is charged with dividing the community estate in a
“just and right” manner, considering the rights of both parties. Id. § 7.001; Sandone v.
Miller-Sandone, 116 S.W.3d 204, 206–07 (Tex. App.—El Paso 2003, no pet.) Although
the trial court is not required to divide the community estate equally, its division must be
equitable. Sandone 116 S.W.3d at 207. The trial court’s discretion is not unlimited, and
there must be some reasonable basis for unequal division. Id.
Elizabeth was the only person to testify as to the community property. Through
her testimony, an exhibit was admitted showing a proposed property division based on
the values of the community property and debts owed. The trial court heard from
Elizabeth that the exhibit was a summary of her request for division of the property and
that it was “fair and equitable” based on her “knowledge of the community estate.”
Donald contends that the exhibit was admitted in error because Elizabeth did not
testify as to the requisite knowledge of her familiarity with the market values of the
property. 3 He further argues that the evidence was insufficient to divide the property as
the trial court did. As the party challenging the division of property, Donald bears the
burden of demonstrating from the evidence in the record that the trial court’s division was
3To the extent Donald argues the exhibit was inadmissible evidence, he waived this issue because
there was no objection at trial. TEX. R. APP. P. 33.1.
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so unjust and unfair as to be an abuse of discretion. Banker v. Banker, 517 S.W.3d 863,
870 (Tex. App.—Corpus Christi 2017, pet. denied). Here, the trial court was presented
with testimony from Elizabeth that the exhibit she prepared was based on her knowledge
of the community estate and supported an equitable distribution. The trial court admitted
the exhibit into evidence for consideration in determining the division of the estate in the
divorce decree. Because the trial court was presented with uncontested evidence
supporting the values and debts related to the community estate and ordered the division
on the basis of such information, we hold that Donald did not meet his burden to show
that the trial court’s division was an abuse of discretion. We overrule Donald’s fifth issue.
e. Spousal Maintenance
The purpose of spousal maintenance is to provide temporary and rehabilitative
support for a spouse whose ability to support herself has eroded over time while engaged
in homemaking activities and whose capital assets are insufficient to provide support.
O’Carolan v. Hopper, 71 S.W.3d 529, 533 (Tex. App.—Austin 2002, no pet.). The trial
court may, in its discretion, award spousal maintenance only if the party seeking
maintenance meets specific eligibility requirements. See TEX. FAM. CODE ANN. § 8.051
(West, Westlaw through 2017 1st C.S.); Pickens v. Pickens, 62 S.W.3d 212, 214–15 (Tex.
App.—Dallas 2001, pet. denied). Determining the spouse’s minimum reasonable needs
is a fact-specific determination done on a case-by-case basis. Amos v. Amos, 79 S.W.3d
747, 749 (Tex. App.—Corpus Christi 2002, no pet.). We review the trial court’s decision
to award spousal maintenance under an abuse of discretion standard. Id.; Deltuva v.
Deltuva, 113 S.W.3d 882, 888 (Tex. App.—Dallas 2003, no pet.). Under the abuse of
discretion standard, legal and factual sufficiency of the evidence are not independent
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grounds for asserting error, but they are relevant factors in assessing whether the trial
court abused its discretion. Brooks v. Brooks, 257 S.W.3d 418, 425 (Tex. App.—Fort
Worth 2008, pet. denied); Diaz v. Diaz, 350 S.W.3d 251, 254 (Tex. App.—San Antonio
2011, pet. denied).
When divorce is sought in a marriage lasting ten years or more, a spouse may
request spousal maintenance if she lacks sufficient property to meet her minimum
reasonable needs and cannot support herself due to insufficient earning capability.
Pickens, 62 S.W.3d at 215. However,
[i]t is a rebuttable presumption that maintenance under Section 8.051(2)(b)
is not warranted unless the spouse seeking maintenance has exercised
diligence in:
(1) earning sufficient income to provide for the spouse’s minimum
reasonable needs; or
(2) developing the necessary skills to provide for the spouse’s
minimum reasonable needs during a period of separation and
during the time the suit for dissolution of the marriage is
pending.
TEX. FAM. CODE ANN. § 8.053(a) (West, Westlaw through 2017 1st C.S.).
The record reflects that Elizabeth is a hall manager and secretary for the Knights
of Columbus Hall, earning approximately $2,000.00 a month. Elizabeth testified that
Donald had a greater source of income and earning potential than she does and it would
take her time to develop additional skills to further her employment and receive a greater
income. She requested Donald be ordered to pay $500.00 per month for the maximum
period of 60 months. See Id. § 8.054 (West, Westlaw through 2017 1st C.S.). Elizabeth
provided no testimony as to her expenses and needs that her current income could not
meet. She provided no explanation of what type of skills she needed in order to become
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more gainfully employed, nor did she provide testimony regarding an estimate of how
long it would take to acquire new skills. Here, the only testimony was that she needed
some time to develop additional skills to increase her income. There was insufficient
evidence presented upon which the trial court could exercise its discretion to award
spousal maintenance. Therefore, without supporting probative evidence showing the
reasonableness, the trial court erred by awarding spousal maintenance. We sustain
Donald’s sixth issue.
f. Injunctive Relief
Donald’s argument regarding the permanent injunctions revolves around the
“morality” injunction in which the trial court enjoined Donald from “permitting an unrelated
adult with whom [Donald] has an intimate or dating relationship to remain in the same
residence with the children between the hours of 10:00 p.m. and 8:00 a.m.” There was
no such imposition on Elizabeth.
In Peck, which both Donald and Elizabeth rely on for their arguments, the court of
appeals affirmed the trial court’s decision to make a similar imposition on both husband
and wife. Peck v. Peck, 172 S.W.3d 26, 35 (Tex. App.—Dallas 2005, pet. denied). The
court in Peck also noted “We are unaware of any legal authority that would compel the
trial court to rule differently on this issue.” Id. There, husband and wife were both
enjoined from allowing a person of the opposite sex with whom they have or might have
an intimate or dating relationship with to remain overnight in the same residence or
lodging as their child. Id. at 33. The trial court in Peck considered the testimony of both
husband and wife relating to a current intimate relationship husband was in. Id. After
hearing considerable testimony, the trial court held that it was in the best interests of the
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child if neither parent had an unrelated adult remain overnight in the same residence as
the child. Id at 35.
Here, however, the only evidence relating to the injunction was Elizabeth’s request
for the injunction in the temporary orders in her petition for divorce and her affirmative
testimony to continue the injunctions from the temporary orders in the final decree. While
the trial court’s discretion is not unlimited, the trial court is granted broad discretion to
consider the best interests of the child in determining the restrictions in the final decree.
Id.; see Capello v. Capello, 922 S.W.2d 218, 220 (Tex. App.—San Antonio 1996, no writ)
(“The trial court, in considering the best interest of the child, had the discretion to weigh
and compare appellant’s inconvenience with the safety and well-being of the child.”).
In the final divorce decree, the trial court found that “based on public policy
considerations stated in section 153.001 of the Texas Family Code, it is in the best
interests of the children” that Donald not permit an unrelated adult to remain in the
residence with his children overnight. Cf. Peck, 172 S.W.3d at 35 (court imposed the
restriction on both husband and wife and “had considerable time with the parties and
undoubtedly understood better than this Court could the ‘forces, powers, and influences’
that governed the relationships between and among Husband, Wife, and their son.”).
Therefore, with only Elizabeth’s petition and minimal testimony available in determining
the injunction was necessary, we find that the trial court abused its discretion in entering
the injunction preventing only Donald from permitting an unrelated adult to remain in the
residence with his children overnight. We sustain Donald’s seventh issue.
III. CONCLUSION
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We affirm the trial court’s divorce decree except for the parts pertaining to spousal
maintenance and the injunction preventing Donald from permitting an unrelated adult to
remain overnight in his residence during his visitation with his children. We reverse these
two portions of the decree and remand this case to the trial court for a new trial solely on
these issues.
NORA L. LONGORIA
Justice
Delivered and filed the
28th day of June, 2018.
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