in the Matter of the Marriage of Isis Spencer Butts and Rickey Sharnard Butts

Affirmed in Part and Reversed and Remanded in Part and Opinion filed
August 19, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00536-CV
IN THE MATTER OF THE MARRIAGE OF ISIS SPENCER BUTTS AND
RICKEY SHARNARD BUTTS
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Cause No. CV-27505
OPINION
Appellant Rickey Butts brings this restricted appeal from the trial court’s
final decree of divorce. Rickey contends the evidence is insufficient to support the
trial court’s orders appointing appellee Isis Butts as sole managing conservator of
the couple’s child and awarding $800 per month in child support. Rickey also
contends the judgment is void for vagueness. Because error is shown on the face of
the appellate record, we affirm in part and reverse and remand in part for further
proceedings.
BACKGROUND
In 2002, Rickey and Isis were married and resided in Florida. Later that
year, the couple had their only child, R.B. In 2011, Rickey and Isis stopped living
together, and in 2012, Isis filed a petition for divorce in Texas. Rickey signed a
waiver of service regarding the pending divorce case. In the waiver, Rickey listed
his home address as Belle Glade, Florida. The waiver contains language indicating
that by signing, Rickey enters an appearance as a substitute for going to court,
“agrees that the court can make decisions in this case without further notice to
[him],” and agrees that “the Judge . . . of the court may make decisions about [his]
divorce.” This waiver was filed with the court on October 24, 2012.
On December 19, 2012, a hearing was held in which Isis appeared pro se.
Rickey did not appear. At the conclusion of the hearing, the trial court signed a
final decree of divorce. The trial court also ordered that, and among other things,
Isis was appointed the sole managing conservator of R.B. and Rickey was required
to pay $800 a month in child support. On June 18, 2013, Rickey filed a notice of
restricted appeal.
ISSUES AND ANALYSIS
Rickey presents three issues on appeal: (1) the trial court abused its
discretion in its child support determination because the evidence is legally and
factually insufficient to support the determination; (2) the trial court abused its
discretion in appointing Isis as the sole managing conservator because the evidence
is legally and factually insufficient to support the appointment; and (3) the
judgment of the trial court is void for vagueness. In response, Isis contends that
Rickey has not met the requirements of a restricted appeal and, alternatively, that
the trial court did not abuse its discretion and the judgment is not void.
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I. Isis’s Challenge to Rickey’s Restricted Appeal
As a threshold matter, Isis urges that Rickey is not entitled to bring a
restricted appeal because he cannot satisfy the requirements of a restricted appeal.
To bring a restricted appeal, Rickey must establish that: (1) he filed notice of the
restricted appeal within six months after the judgment was signed; (2) he was a
party to the underlying lawsuit; (3) he did not participate in the hearing that
resulted in the judgment complained of and did not timely file any post-judgment
motions or requests for findings of fact and conclusions of law; and (4) error is
apparent on the face of the record. See Alexander v. Lynda’s Boutique, 134 S.W.3d
845, 848 (Tex. 2004). Isis challenges only elements three and four.
A. Failure to Participate in the Decision-Making Event
Isis contends that Rickey participated in the hearing resulting in the
judgment because the “Waiver of Service” form Rickey signed is sufficient to
constitute participation in the decision-making event. In the form, Rickey swore
under oath that by signing, he was entering an appearance as a substitute for going
to court. The form also included the following statements on which Isis relies: (1)
“I have read the Petition for Divorce and understand what it says . . . .”; and (2) “I
agree that a Judge, Associate Judge, or appointed Referee of the Court may make
decisions about my divorce . . . .” Isis also argues that by signing the form, Rickey
is estopped from denying his participation in the decision-making event. We
address both of these arguments.
1. Rickey did not participate by signing the waiver of service.
When analyzing the third element of nonparticipation, the investigation turns
on whether the appellant took part in the “decision-making event” that resulted in
an adjudication of the appellant’s rights. Texaco, Inc. v. Cent. Power & Light Co.,
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925 S.W.2d 586, 589 (Tex. 1996). It is not necessary that an appellant attend the
trial on the merits in order to be deemed as having taken part in a decision-making
event. Id. Whether someone participated in the decision-making event is a matter
of degree “because trial courts decide cases in a myriad of procedural settings.”
McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 129 (Tex. App.—Houston [14th
Dist.] 2004, no pet.) (citing Texaco, Inc., 925 S.W.2d at 589); see also Tramco
Enters., Inc. v. Indep. Am. Sav. Ass’n, 739 S.W.2d 944, 946 (Tex. App.—Fort
Worth 1987, no writ) (stating that “the courts . . . have recognized that a large
degree of participation is required before a party is denied appeal by writ of
error”).
The law is clear that signing a waiver of service alone is not sufficient to
constitute participation for purposes of a restricted appeal. See, e.g., Stubbs v.
Stubbs, 685 S.W.2d 643, 645 (Tex. 1985); Seymour v. Seymour, No. 14-07-00280-
CV, 2009 WL 442259, at *2 (Tex. App.—Houston [14th Dist.] Feb. 10, 2009)
(mem. op.); Campsey v. Campsey, 111 S.W.3d 767, 771 (Tex. App.—Fort Worth
2003, no pet.). This is true even when the language of the waiver indicates that by
signing, one is entering an appearance as a substitute for going to trial, giving a
judge permission to make decisions in the case without further notice to the signor,
and waiving the making of a record of testimony. See Seymour, 2009 WL 442259
at *1–2; Campsey, 111 S.W.3d at 769–71. Though the language in the form signed
by Rickey may be broad, this court will treat the form as what it purports to be—a
waiver of service. As such, we conclude that Rickey did not participate in the
decision-making event by merely signing the form.
2. Rickey is not estopped from denying participation.
Isis also asserts that Rickey is judicially estopped from challenging the
decisions made by the judge in his divorce action. Judicial estoppel “precludes a
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party from adopting a position inconsistent with one that it maintained successfully
in an earlier proceeding.” Pleasant Glade Assembly of God v. Schubert, 264
S.W.3d 1, 6 (Tex. 2008). The doctrine of judicial estoppel applies if all of the
following elements are present: (1) a sworn, prior inconsistent statement made in a
judicial proceeding; (2) the party now sought to be estopped successfully
maintained the prior position; (3) the prior inconsistent statement was not made
inadvertently or because of mistake, fraud, or duress; and (4) the statement was
deliberate, clear and unequivocal. Spera v. Fleming, Hovenkamp & Grayson, P.C.,
25 S.W.3d 863, 871 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Vinson &
Elkins v. Moran, 946 S.W.2d 381, 396 (Tex. App.—Houston [14th Dist.] 1997,
writ dism’d by agr.).
Isis claims that the waiver of service signed by Rickey—in which he agreed
under oath that a judge may make decisions in the divorce action without further
notice to him—is inconsistent with Rickey’s appeal of the judge’s decision. But,
“[a]n appeal in the same case is not a ‘subsequent action’ to which judicial
estoppel applies.” Graves v. Tomlinson, 329 S.W.3d 128, 138 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied). Because Rickey is making an appeal in the
same case in which the alleged prior inconsistent statement was made, the doctrine
of judicial estoppel does not apply.
Nevertheless, Isis’s brief may be fairly construed to include an argument that
Rickey is equitably estopped from appealing because the language in the waiver of
service is inconsistent with the requirement of nonparticipation in the decision-
making event. See Tex. R. App. P. 38.1(f) (“The statement of an issue or point will
be treated as covering every subsidiary question that is fairly included.”). 1 We
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Although most of Isis’s argument refers to the doctrine of judicial estoppel, Isis’s brief
also includes the following: “The doctrine of equitable estoppel exists to prevent the very
conduct [Rickey] has displayed here . . . . The Court should hold that [Rickey] is estopped from
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understand Isis’s position to be that, having authorized the trial court to make
decisions for him, Rickey cannot now deny the trial court’s authority.
Isis argues that Seymour, on which Rickey relies, actually supports her
position because in that case, this Court held that the appellant “acquiesced” to the
divorce decree by signing a post-judgment motion to reinstate, effectively
indicating her approval of the divorce decree’s terms and precluding her restricted
appeal. See 2009 WL 442259 at *2–3. But unlike the appellant in Seymour, Rickey
took no additional actions after signing the waiver of service. As previously
discussed, the signing of a waiver of service alone is insufficient to constitute
participation in the decision-making event, even when that waiver contains
language authorizing the judge to make decisions in the case. See Seymour, 2009
WL 442259 at *1–2; Campsey, 111 S.W.3d at 769–71. Because the record reflects
no additional actions by Rickey that would rise to the level of participation at trial,
Rickey is not equitably estopped from denying his participation.
Isis also argues that “[t]he restricted appeal is not a means to give a party
who suffers a default judgment at his own hands another opportunity to have the
merits of its case reviewed.” As support for this proposition, Isis relies on Classic
Promotions, Inc. v. Shafer, 846 S.W.2d 948, 951 (Tex. App.—Houston [14th Dist.]
1993, no writ), abrogated by Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d
586 (Tex. 1996), and Flores v. H.E. Butt Grocery Co., 802 S.W.2d 53, 55 (Tex.
App.—Corpus Christi 1990, no writ). However, in Texaco, the Supreme Court of
Texas disapproved of Classic Promotions and other cases similarly holding that a
restricted appeal is not available to a party that fails to exercise diligence and
suffers a judgment because of its own actions. See Texaco, Inc., 925 S.W.2d at
asserting that he did not participate in the decision-making event after having decided to ask the
court to decide.”
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590. The Court held that a party seeking a restricted appeal was “not required to
show diligence or lack of negligence before its complaints will be heard.” Id.
Guided by Texaco, we conclude that Rickey is not estopped from denying his
participation at the decision-making event.
B. Error Apparent on the Face of the Record
Isis next contends that Rickey is not entitled to a restricted appeal because
Rickey’s challenges to the sufficiency of the evidence supporting the trial court’s
rulings rely on an absence of evidence, and that the absence of evidence is not
error apparent on the face of the record. The authorities upon which Isis relies are
distinguishable, however, because they involve complaints that a party did not
receive notice of trial court proceedings, not complaints that the evidence is
insufficient to support the judgment. See Gold v. Gold, 145 S.W.3d 212, 213 (Tex.
2004) (per curiam) (holding that failure of record to affirmatively show that notice
of intent to dismiss was sent to a party was not error on the face of the record);
Alexander, 134 S.W.3d at 849 (same).
For purposes of a restricted appeal, the face of the record concsists of “all
the papers on file in the appeal,” including the reporter’s record. Norman
Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).
Because the scope of review in a restricted appeal is the same as in an ordinary
appeal, an appellant may challenge the legal and factual sufficiency of the
evidence. Id.; see also Osteen v. Osteen, 38 S.W.3d 809, 813 (Tex. App.—Houston
[14th Dist.] 2001, no pet.) (holding that error was apparent on the face of the
record after applying a legal sufficiency review to a divorce decree); Gonzalez v.
Gonzalez, 331 S.W.3d 864, 868 (Tex. App.—Dallas 2011, no pet.) (holding that
error was apparent on the face of the record when record lacked evidence regarding
obligor’s net resources in child support determination). We therefore will address
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Rickey’s sufficiency challenges to determine whether there is error on the face of
the record.
II. Rickey’s Issues on Appeal
A. The Trial Court’s Child Support and Conservatorship Orders
In his first two issues, Rickey contends that the trial court abused its
discretion by requiring him to pay $800 per month in child support and appointing
Isis as sole managing conservator because there is no evidence to support these
rulings. The standard of review in both child support and managing
conservatorship orders is abuse of discretion. In re A.M.P., 368 S.W.3d 842, 846
(Tex. App.—Houston [14th Dist.] 2012, no pet.) (child support); In re R.T.K., 324
S.W.3d 896, 899 (Tex. App.—Houston [14th Dist.] 2010, pet. denied)
(conservatorship). Generally, a court abuses its discretion when it acts
unreasonably, arbitrarily, or without reference to any guiding principles. In re
R.T.K., 324 S.W.3d at 899. Legal and factual sufficiency challenges are not
independent grounds of error; instead, they are factors to be considered in
determining whether the trial court abused its discretion. Id. A trial court does not
abuse its discretion if there is some evidence of a substantive and probative
character to support its decision. Id. at 900.
1. No evidence supports the trial court’s child support order.
Rickey argues that the trial court abused its discretion in ordering him to pay
$800 per month in child support because the record is devoid of any evidence of
his net resources and the trial court made no findings to support a deviation from
the Family Code’s child support guidelines. Rickey requests that this court reverse
the trial court’s child support order and either render judgment awarding child
support consistent with the guidelines or remand the issue for further proceedings.
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Generally, child support is calculated by applying statutory guidelines to the
obligor’s monthly net resources. See Tex. Fam. Code §§ 154.062(a), 154.124. For
one child, the guidelines provide that child support is to equal twenty percent of the
obligor’s net resources. Id. § 154.125(b). The trial court may deviate from the
guidelines if evidence rebuts the presumption that application of the guidelines is
in the best interest of the child. Id. § 154.123. If the guidelines are not followed, a
trial court must make specific findings as to (1) the net resources of the obligor and
the obligee, (2) the percentage applied to the obligor’s net resources, and (3) if
applicable, the specific reasons for the deviation from the guidelines.
Id. § 154.130(a)(3), (b).
Absent evidence of the obligor’s net resources, the trial court is required to
presume that the obligor has wages or salary equal to the federal minimum wage
for a forty-hour week. Act of April 6, 1995, 74th Leg., ch. 20, § 1, 1995 Tex. Gen.
Laws 118, 161 (amended 2013) (current version at Tex. Fam. Code § 154.068);
Moreno v. Perez, 363 S.W.3d 725, 736 (Tex. App.—Houston [1st Dist.] 2011, no
pet.). Based on the 2012 minimum-wage guidelines, Rickey calculates the
applicable amount of child support to be less than $230 per month.
Isis argues that child support of $800 per month is justified because the
record establishes that she had net resources of only $600 per month, Rickey was
employed at the Butts Memorial Chapel, Rickey caused Isis to lose her car by
ceasing to make payments on it, and Isis testified that $800 per month in child
support would be in the best interest of the child. But Isis presented no evidence
regarding Rickey’s financial resources.
Absent evidence of Rickey’s financial resources, the statutory presumption
that Rickey earns the federal minimum wage for a forty-hour week applies. See
Moreno, 363 S.W.3d at 736. Applying this presumption, the trial court’s award of
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$800 per month is much more than twenty percent of Rickey’s presumed net
resources. Assuming the trial court determined that the evidence supported
deviating from the child support guidelines, the trial court was required to make
the specific findings required by the Family Code. See Tex. Fam. Code § 154.130.
However, the trial court did not make the required findings, either in writing or
orally at the hearing.
We therefore hold that the trial court abused its discretion in ordering Rickey
to pay $800 per month in child support in the absence of any evidence of Rickey’s
net resources and without making the statutorily mandated findings. See Omodele
v. Adams, No. 14-01-00999-CV, 2003 WL 133602 at *4–5 (Tex. App.—Houston
[14th Dist.] Jan. 16, 2003, no pet.) (mem. op.) (holding that in the absence of
evidence of the obligor’s net resources, the trial court abused its discretion by
awarding child support in excess of the federal minimum wage presumption
without making the findings required by § 154.130). We therefore sustain Rickey’s
first issue.
2. Some evidence supports appointment of Isis as sole managing
conservator.
In his second point of error, Rickey argues that the trial court abused its
discretion in awarding Isis sole managing conservatorship of their child because no
evidence was presented to overcome the presumption that it is in the child’s best
interest to appoint both parents as joint managing conservators, and the trial court
made no findings in connection with the conservatorship issue. Rickey requests
that this Court reverse the trial court’s conservatorship order and either render
judgment that Rickey and Isis are joint managing conservators or remand for
further proceedings.
In Texas, the primary consideration in determining conservatorship is the
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best interest of the child. Tex. Fam. Code § 153.002; In re V.L.K., 24 S.W.3d 338,
342 (Tex. 2000).The trial court is required to presume that the appointment of the
parents as joint managing conservators is in the best interest of the child until
evidence is presented to rebut this presumption. See Tex. Fam. Code § 153.131(b).
The party seeking appointment as sole managing conservator has the burden to
rebut the presumption. Lide v. Lide, 116 S.W.3d 147, 152 (Tex. App.—El Paso
2003, no pet.).
When, as here, the parents do not file an agreed parenting plan, the trial
court may render an order appointing the parents joint managing conservators only
if the appointment is in the best interest of the child. Id. § 153.134(a). In making its
determination, the trial court is to consider the following factors:
(1) whether the physical, psychological, or emotional needs and
development of the child will benefit from the appointment of joint
managing conservators;
(2) the ability of the parents to give first priority to the welfare of the
child and reach shared decisions in the child’s best interest;
(3) whether each parent can encourage and accept a positive
relationship between the child and the other parent;
(4) whether both parents participated in child rearing before the filing
of the suit;
(5) the geographical proximity of the parents’ residences;
(6) if the child is 12 years of age or older, the child’s preference, if
any, regarding the person to have the exclusive right to designate the
primary residence of the child; and
(7) any other relevant factor.
Id. A finding of a history of family violence involving at least one of the parents of
a child removes the presumption that a joint managing conservatorship is in the
best interest of the child. Id. § 153.131(b).
The record establishes that Ricky and Isis were married in June 2002, and
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R.B. was born in October 2002. Isis testified that she and Rickey stopped living
together in April 2011, apparently when R.B. was eight years old. Isis and R.B.
lived in Florida until April 9, 2012, when they moved to Texas. Rickey continued
to live and work in Florida. Isis requested a divorce on the basis of irreconcilable
differences and an award of $3,000 as “a fair and equitable division of the
community property and debts.” There is no evidence that Rickey has any
continuing relationship with either Isis or R.B., and no evidence of R.B.’s
relationship with either parent. There is also no evidence of R.B.’s physical health
or emotional well-being. Nor is there any evidence of family violence, and at the
time Isis sought the divorce from Rickey, she represented that there were no
protective orders against either of them, and that neither had asked for one.
Isis also testified that one morning in December 2012, as she prepared to go
to work, she discovered that the car Rickey had provided her was missing and,
when she reported it stolen, she was informed by the police that the car had been
repossessed because Rickey stopped making payments on it. Isis argues that the
trial court could have presumed that Isis, as a single mother without financial
support from Rickey, relied on the car to get to work, to take R.B. to school, and
for transportation necessary for doctor’s appointments, grocery shopping, and other
errands. Isis also argues that Rickey declined to attend the hearing to determine
conservatorship and instead left it to the trial court to decide. Isis contends the
evidence demonstrates that R.B.’s physical health or emotional development would
be harmed by Rickey’s appointment as conservator and that this evidence is
sufficient to overcome the presumption on which Rickey relies.
Neither party specifically discusses the statutory factors the trial court is to
consider in determining whether joint conservatorship is in the child’s best interest.
From our review of the record, we find no evidence concerning whether R.B.
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would benefit from joint managing conservatorship, whether Isis and Rickey could
cooperate in making decisions for R.B., or whether either parent could promote a
positive relationship with the other parent. Because Isis testified that she and
Rickey lived together until 2011, there is some evidence that both parents
participated in raising the child for at least eight years before Isis filed for divorce.
But there is no evidence that Rickey has attempted to maintain any kind of
relationship with R.B. after R.B. and Isis moved to Texas, and the trial court could
have determined that Isis and Rickey no longer communicate with each other,
based on Isis’s testimony that she learned from the police, rather than Rickey, that
Rickey was no longer making payments on the car.
Moreover, the fact that Rickey resides in Florida, several states away from
Texas, is an important factor to consider in evaluating whether joint
conservatorship is in the best interest of the child. See In re Marriage of Bertram,
981 S.W.2d 820, 825 (Tex. App.—Texarkana 1998, no pet.). Additionally, the fact
that Rickey waived service and chose not to participate in the divorce proceedings
in which conservatorship, as well as child support and other matters significant to
the child’s well-being, is some evidence that Rickey has little interest in
maintaining any relationship with R.B. Likewise, Rickey’s willingness to leave
Isis, a single mother caring for her child on an income of $600 per month, without
a means of transportation to get to work or to provide for the child’s needs, is also
some evidence that Rickey has little concern for R.B.’s welfare.
Accordingly, we conclude that there is some evidence to overcome the
presumption that joint conservatorship is in the child’s best interest, and therefore
the trial court did not abuse its discretion in awarding Isis sole conservatorship of
R.B. See In re Marriage of Robinson, 16 S.W.3d 451, 456 (Tex. App.—Waco
2000, no pet.) (holding that more than a scintilla of evidence existed to support the
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finding that appointing father sole managing conservator was in the child’s best
interest, thus also rebutting the presumption in favor of appointing the parents as
joint managing conservators). We therefore overrule Rickey’s second issue.
B. The Validity of the Final Decree of Divorce
In his third and final issue, Rickey asserts that the divorce decree is
unintelligible and void. According to Rickey, the decree in this case was generated
as a form document used in pro se divorces, and the form includes “Parenting Plan
Exhibits” that are neither signed nor initialed by the trial court. Additionally,
Rickey complains the trial court left blank the boxes to be checked to indicate
which “exhibits” were included in the parenting plan—an omission Rickey
contends is critical. Rickey relies on the following portion of the judgment:
VI. Parenting Plan:
The Court FINDS that the attached orders found in the Parenting Plan
Exhibits are in the best interest of the children, and makes the
following orders regarding custody, visitation, child support, and
health insurance, as included in this section and the attached Parenting
Plan Exhibits.
...
Parenting Plan Exhibits – The following Exhibits are attached to this
Decree of Divorce and are made a part of this Decree for all purposes.
□ Exhibit: Conservatorship (Custody) Order
□ Exhibit: Rights and Duties Order
□ Exhibit: Possession and Access (Visitation) Order
□ Exhibit: Child Support Order
□ Exhibit: Medical Support Order
□ Exhibit: Family Information
As noted, none of the boxes are checked. Several pages later, just above where the
trial court is to sign, the judgment states that “[a]ny orders requested that do not
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appear above are denied.”
Rickey asserts that because none of the above boxes were checked, the
parenting plan orders attached to the divorce decree were never incorporated, and
the only reasonable interpretation of the decree is that the trial court denied all of
the relief requested in the parenting plan. Consequently, Rickey urges, the
judgment is internally inconsistent, unintelligible, and fails to incorporate by
reference the parenting plan. See Stewart v. USA Custom Paint & Body Shop, Inc.,
870 S.W.2d 18, 20 (Tex. 1994) (“A judgment must be sufficiently definite and
certain to define and protect the rights of all litigants, or it should provide a definite
means of ascertaining such rights, to the end that ministerial officers can carry the
judgment into execution without ascertainment of facts not therein stated.”); see
also Am. Cas. & Life Ins. Co. v. Boyd, 394 S.W.2d 685, 688 (Tex. Civ. App.—
Tyler 1965, no writ) (holding that an order purporting to both grant and deny a
motion to dismiss was “utterly unintelligible on its face” and therefore of no legal
force and effect). Further, Rickey argues that omission of the parenting plan leaves
major and essential issues of the divorce wholly unresolved, citing Texas Family
Code section 6.406 (providing that a suit for dissolution of a marriage must include
a suit affecting the parent-child relationship). We disagree with Rickey’s
characterization of the trial court’s order.
Each of the exhibits to the parenting plan are actually attached to the decree
and have been completed to reflect the trial court’s orders on each, including the
orders on conservatorship and child support challenged in Rickey’s first and
second issues. Further, the parenting-plan portion of the decree does not instruct
that some or all of the boxes must be checked for the orders to be effective. The
decree does, however, reflect that “[t]he Court finds that the attached orders found
in the Parenting Plan Exhibits are in the best interest of the children” and “are
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attached to this Decree of Divorce and are made a part of this Decree for all
purposes.” (emphasis added). Consequently, the parenting plan exhibits attached to
the divorce decree are incorporated for all purposes, are sufficiently definite and
certain, and are neither internally inconsistent nor unintelligible such that major
and essential issues relating to the divorce are left unresolved. See Shanks v.
Treadway, 110 S.W.3d 444, 447 (Tex. 2003) (divorce decrees should be construed
as a whole to harmonize and give effect to the entire decree). We therefore
overrule Rickey’s third issue.
CONCLUSION
Rickey has demonstrated error on the face of the record concerning the trial
court’s order requiring Rickey to pay child support of $800 per month, and we
therefore reverse that portion of the trial court’s final decree of divorce and remand
for further proceedings consistent with this opinion. We affirm the remainder of
the judgment.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
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