Texas Divorce Attorney Blog
The Seventh District Court of Appeals recently considered a case involving significant issues of custody and child support. The trial court had appointed the father sole managing conservator and ordered him to pay child support to the mother. Both parents appealed.
Sole Managing Conservator
The mother argued the trial court erred in finding an incident in June 2021 prevented it from appointing both parents joint managing conservators. According to the appeals court, the mother pleaded guilty to misdemeanor assault on the father as a result of the referenced incident. The trial court found a history of abuse by the mother against the father and that the mother pleaded guilty to misdemeanor assault on the father regarding an incident on or about June 13, 2021. The court named the father sole managing conservator and the mother possessory conservator. The court stated in its conclusions of law that “[b]ecause Petitioner pleaded guilty to misdemeanor assault of Respondent, the Court cannot appoint the parties joint managing conservators.” The mother argued, based on this statement, that the trial court had concluded it was required to find a history of abuse based only on the guilty plea.
Tex. Fam. Code § 153.004(b), prohibits a court from appointing joint managing conservators there is credible evidence “of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child . . .” The statute does not define the meaning of “history.” The appeals court noted that it had not held that a single instance of physical abuse against the other parent necessarily constitutes a history of abuse, but had ruled that the trial court has the discretion to conclude that a single incident can constitute a history. The appeals court therefore concluded that the trial court could have found the mother’s guilty plea to a misdemeanor assault charge sufficient to prove the existence of a history of abuse against the child’s father.
The appeals court pointed out, however, that the mother’s challenge was actually against the trial court’s statement that it “cannot appoint” the parents joint managing conservators. The appeals court acknowledged that the “cannot” language could suggest the court believed that it was required to find a history of domestic violence based on the mother’s guilty plea, but noted the language could also be interpreted to reflect the court’s belief that the incident was sufficient to support a finding of history and it therefore could not appoint the parents joint managing conservators.
The appeals court noted that the briefings included discussion of In re Marriage of Stein, which addressed the issue of the meaning of “history” with regard to one incident. The parties did not argue that a single incident must constitute a history. Furthermore, the father argued that the evidence showed there had been multiple acts of violence by the mother.
Additionally, the appeals court must presume the trial court followed the law unless a party established it did not do so. The appeals court determined that the “cannot appoint” language was insufficient to show that the court believed it was required to find there was a history based on the single incident.
The appeals court also noted, “most importantly,” that it was not required to reverse based on the trial court’s incorrect conclusions of law if the findings supported a correct legal theory. Under Stein, a single incident of abuse can constitute a history. Furthermore, there was evidence of other violent acts in the record. Thus the trial court’s finding of “a history of physical abuse” supported a correct legal theory and the court’s decision not to name the parents joint managing conservators was correct.
No Child Support for Possessory Conservator
The father argued the trial court did not have the discretion to order him as the sole managing conservator to pay child support.
The appeals court pointed out that each parent has the duty to financially support the child. The record showed the father had the economic means to support the child.
Tex. Fam. Code § 153.132(4) provides that “[u]nless limited by court order, a parent appointed as sole managing conservator of a child has the . . . the following exclusive rights . . .the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child.” The appeals court noted that several appeals courts had interpreted this statute to mean a possessory conservator is prohibited from receiving child support from the sole managing conservator. The appeals court pointed out that there is a statute that provides a possessory conservator has the rights granted by statute or “expressly granted” in the trial court’s order. Tex. Fam. Code § 153.192(a). There is another statute that states the court “may order either or both parents to support a child in the manner specified by the order . . . .” Id. at § 154.001(a). There is not, however, a statute that expressly gives a possessory conservator the right to receive child support. The appeals court concluded that the specific language in § 153.132(4) granting the exclusive right to child support to the sole managing conservator controlled, and that the more general language in the other statutes did not change that. The appeals court concluded the trial court abused its discretion in order the sole managing conservator to pay child support to the possessory conservator.
The appeals court reversed the part of the trial court’s judgment ordering the father to pay child support. Recognizing that child support is interrelated with property division and visitation in a divorce decree and stating it could not be reasonably certain the court’s determinations on the other issues were not significantly affected by its error, the appeals court also reversed the portions of judgment involving payment of expenses for the child and visitation and remanded the case to the child support.
Obtain Skilled Legal Counsel
This case shows how domestic violence can affect child custody and support. In a custody case involving a history of domestic violence, it is important to have a Texas custody attorney experienced in handling domestic violence. Call McClure Law Group at 214.692.8200 to set up a meeting.