in the Interest of J.A.L, a Child ( 2013 )


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  • Affirm and Opinion Filed this 15th day of August, 2013.
    S   In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-12-00298-CV
    IN THE INTEREST OF J.A.L, A CHILD
    On Appeal from the 256th Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. DF-09-06253
    MEMORANDUM OPINION
    Before Justices O’Neill, Francis, and Fillmore
    Opinion by Justice Francis
    Following a bench trial, Jorge Ledezma challenges those portions of the final decree of
    divorce (1) adjudicating the parentage of the unborn child of his ex-wife, Miriam Macias, and (2)
    designating Macias as sole managing conservator of their son, J.A.L., after finding Ledezma
    committed family violence. Because we conclude both issues are without merit, we affirm.
    J.A.L. was born in October 2006 to Macias and Ledezma. The couple married in April
    2007, and Macias filed for divorce two years later. In her original petition, Macias alleged
    Ledezma had a history or pattern of committing family violence and asked to be named sole
    managing conservator of J.A.L. She asked that Ledezma be denied access to the child, or
    alternatively, supervised access. She also sought child support. Ledezma filed a counter-petition
    in which he alleged Macias had a history of committing family violence and sought to be
    designated sole managing conservator with Macias having only supervised visitation.
    At trial, Macias testified she filed for divorce because of the “constant repeated domestic
    abuse” by Ledezma. She said a week did not go by during their relationship “without one or two
    fights” and most of the violence was witnessed by J.A.L. She recounted particular instances of
    abuse, where Ledezma “shook” her and threw her on the bed, threw things, pushed her, and was
    “verbally aggressive.”   Some of the abuse occurred when she was pregnant with J.A.L.
    According to Macias, Ledezma was so jealous that she had to quit a job because he kept accusing
    her of “cheating or messing around with somebody at work.” She said Ledezma or his mother
    would “often times” go to work with her if she had to go in after hours “so they could physically
    see that I was working and not doing anything other than working.”
    During their marriage, Ledezma accused her of cheating on him with his cousins, his
    brother, and even his father. Macias said his jealousy led to the incident that prompted her to
    leave him. Ledezma’s family from Mexico was in town New Year’s Day 2009. After dinner,
    she went to bed. The next morning, she said, Ledezma accused her of having sexual relations
    with his cousin the next night before. They argued, and she ultimately told him she “couldn’t do
    it anymore. I was done.” When she tried to walk away, Ledezma grabbed her by the neck and
    squeezed. Macias said she fought back, and J.A.L. began to cry. Ledezma let her go and threw
    her on the bed. Macias left him two months later and filed for divorce.
    After she filed for divorce, she said Ledezma had regular visitation with J.A.L. for
    several months until J.A.L. came home with a bruise on his leg and said his father had given him
    a “pow pow,” meaning he spanked him. She reported the incident to the police, who contacted
    Child Protective Services. Ledezma was not charged with any offense, but his visits with J.A.L.
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    were supervised after the incident. At one such visit in April 2010, Ledezma was arrested after
    Macias’s mother accused him of assaulting her. At the time of trial, Ledezma was awaiting a
    hearing on possible deportation. Macias said Ledezma and his mother had both threatened to
    flee to Mexico with J.A.L.
    CPS referred Macias to Genesis Women’s Shelter Outreach for domestic violence
    counseling. Mary K. Hamilton, a senior women’s therapist, testified she saw Macias fifteen
    times. In those visits, Macias reported instances of abuse by Ledezma and worried that J.A.L.
    was adversely affected by witnessing Ledezma strangle her. Hamilton believed Macias suffered
    post-traumatic stress syndrome and counseled her on coping skills.
    Dr. Ray O. McClung, a licensed psychologist, conducted psychological evaluations on
    Macias and Ledezma. Among other things, he said Macias “scored” as a person “experiencing
    symptoms of post-traumatic stress disorder” and Ledezma “scored as a man who can be at times
    quite aggressive.” Dr. McClung said Ledezma admitted he and Macias fought and that the
    fighting became more frequent and more intense.        He did not admit hitting Macias, but
    acknowledged that they “pushed” each other. As for Macias’s PTSD score, Dr. McClung
    believed it derived from her marriage to Ledezma and from having lived in an abusive home
    when she was growing up.
    Ledezma testified he “scuffled” with Macias on a couple of occasions but denied abusing
    her. He said they would argue, and Macias would “challenge” him and get “in front” of him, and
    he would “move her to the side.” He said they “would push each other” but denied pushing her
    when she was pregnant. Ledezma said that during their relationship, Macias slapped him, hit
    him, and yelled at him in front of J.A.L. He denied threatening to take J.A.L. to Mexico and
    wanted the court to provide more visitations with his son to make up for those he missed while
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    being investigated by CPS. Ledezma said CPS did not make any finding that he harmed J.A.L.
    nor did the police arrest him for any harm to J.A.L. He also testified he had completed
    recommendations made by the court-ordered social study, including a Batterer’s Intervention
    Program and co-parenting classes, and was in counseling as recommended by Dr. McClung.
    After hearing the evidence, the trial court found, among other things, that there was
    credible evidence of a history or pattern of past or present physical abuse by Ledezma directed at
    Macias and that it was not in J.A.L.’s best interest that Ledezma be appointed sole managing
    conservator. The trial court found that it was in the child’s best interest that Macias be appointed
    sole managing conservator. The trial court allowed supervised visitation for six visits before
    allowing unsupervised visitation between Ledezma and J.A.L.
    In his first issue, Ledezma argues the trial court erred in determining parentage of
    Macias’s unborn child. On the day of the trial, Ledezma’s attorney advised the trial court that
    Macias was pregnant and Ledezma was not the father.             The attorney stated Macias had
    represented her boyfriend was the father and he would execute an acknowledgment of paternity.
    Ledezma’s attorney further stated that Macias was to have a document prepared for Ledezma to
    sign denying he was the father of her unborn child. The attorney indicated she had neither
    document, both of which were “held out to the Court as a condition of going forward today.”
    Macias then testified she was four-and-a-half months pregnant and Ledezma was
    “absolutely not” the father of the child. She asked the trial court to take judicial notice of an
    acknowledgment of paternity filed by Ralph Stevenson, and the trial court said it “would note”
    the AOP. Ledezma objected because the notary failed to date the acknowledgment. Macias said
    she would have the AOP amended, but wanted the court to “take judicial notice of the fact
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    there’s been acknowledgment of paternity by someone other than Jorge Ledezma.” The court
    “note[d]” the objection.
    Macias went on to testify that Stevenson was her boyfriend. She met him in November
    2009, several months after she filed for divorce. They began dating the following summer, and
    she and J.A.L. moved in with Stevenson in March 2011, shortly after she found out she was
    pregnant. At the time of trial, which was June 2011, Macias said they planned to marry, but did
    not have a date. Her baby was due in November. In addition to Macias’s testimony, Ledezma
    testified he was not the father of Macias’s unborn child and said he and Macias had not had
    sexual relations in the past year.
    In its judgment, the trial court found no other children of the marriage are expected.
    Further, the court found “the mother is pregnant and that her husband, Jorge Ledezma denies
    paternity. The court finds that Ralph Stevenson acknowledges paternity of the unborn child;
    therefore, Jorge Ledezma is found not to be the father of the unborn child and will not have any
    rights, duties or obligations regarding this child.”
    On appeal, Ledezma argues the trial court should not have commenced or concluded the
    trial while Macias was pregnant and relies on section 160.611 of the Texas Family Code for
    support. By doing so, he argues he “could be harmed” in the future if he is considered the
    statutory “presumed father” of a child born within 301 days after the divorce. See TEX. FAM.
    CODE ANN. § 160.204(a)(2) (West 2008) (providing that man is presumed to be father of child if
    he is married to child’s mother and child is born “before the 301st day after the date the marriage
    is terminated by . . . divorce”).
    Section 160.611 provides that a proceeding to determine parentage commenced before
    the birth of the child may not be concluded until after the child’s birth and limits the proceedings
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    to service of process, discovery, and collection of specimen for genetic testing. TEX. FAM. CODE
    ANN. § 160.611.
    Ledezma did not complain at trial or in any post-judgment motion that the trial court was
    acting prematurely in determining he was not the father of Macias’s unborn child; in fact, the
    record is clear that Ledezma sought a finding that he was not the father of the child. The only
    complaint Ledezma made below concerned the lack of a date by the notary on the AOP. We
    therefore conclude Ledezma’s complaint is waived. See TEX. R. APP. P. 33.1.
    In his second issue, Ledezma argues the trial court abused its discretion in making a
    finding of family violence against him, which led to the trial court’s designation of Macias as
    sole managing conservator. A trial court’s order regarding conservatorship is subject to review
    for abuse of discretion. In re J.A.J., 
    243 S.W.3d 611
    , 616 (Tex. 2007). The test for abuse of
    discretion is whether the trial court acted in an arbitrary and unreasonable manner or whether it
    acted without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 242 (Tex. 1985). In family law cases, the abuse of discretion standard overlaps
    with the traditional sufficiency standards of review; as a result, legal and factual sufficiency are
    not independent grounds of error but are relevant factors in assessing whether the trial court
    abused its discretion. In re A.B.P., 
    291 S.W.3d 91
    , 95 (Tex. App.—Dallas 2009, no pet.); In re
    S.M.V., 
    287 S.W.3d 435
    , 446 (Tex. App.—Dallas 2009, no pet.). To determine whether the trial
    court abused its discretion because the evidence is insufficient to support its decision, we
    consider whether the trial court (1) had sufficient evidence upon which to exercise its discretion
    and (2) erred in the exercise of that discretion. 
    A.B.P., 291 S.W.3d at 95
    ; 
    S.M.V., 287 S.W.3d at 446
    . We conduct the applicable sufficiency review with regard to the first question. Moroch v.
    Collins, 
    174 S.W.3d 849
    , 857 (Tex. App.—Dallas 2005, pet. denied). We then proceed to
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    determine whether, based on the elicited evidence, the trial court made a reasonable decision. 
    Id. Stated inversely,
    we must conclude the trial court decision was neither arbitrary nor
    unreasonable. 
    Id. When the
    evidence is conflicting, we must presume the factfinder resolved the
    inconsistence in favor of the order if a reasonable person could do so. City of Keller v. Wilson,
    
    168 S.W.3d 802
    , 821 (Tex. 2005). The trial court does not abuse its discretion if some evidence
    of a substantial and probative character exists to support its decision. In re S.E.K., 
    294 S.W.3d 926
    , 930 (Tex. App.—Dallas 2009, pet. denied).
    In determining conservatorship, the best interest of the child shall be the primary
    consideration. TEX. FAM. CODE ANN. § 153.002. The trial court has wide latitude in determining
    the best interest of the child, and the trial court’s decision will be reversed only when it appears
    from the record as a whole that the court has abused its discretion. In re Marriage of Stein, 
    153 S.W.3d 485
    , 488 (Tex. App.—Amarillo 2004, no pet.). It is a rebuttable presumption that the
    appointment of the parents of a child as joint managing conservators is in the best interest of the
    child. TEX. FAM. CODE ANN. § 153.131(b). A finding of a history of family violence involving
    the parents of the child removes the presumption, however. 
    Id. Section 153.004
    of the family code applies to a conservatorship decision when there is a
    history of physical abuse within the family. See TEX. FAM. CODE ANN. § 153.004; Alexander v.
    Rogers, 
    247 S.W.3d 757
    , 761 (Tex. App.—Dallas 2008, no pet.). As applicable here, when
    making its decision about the conservatorship of the child, the trial court was required to
    consider credible evidence of the intentional use of abusive physical force by one parent against
    the other parent, committed within a two-year period preceding the filing of the suit or during
    pendency of the suit. See TEX. FAM. CODE ANN. § 153.004(a); 
    Alexander, 247 S.W.3d at 761
    . If
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    credible evidence of a history or pattern of family violence is presented, the trial court may not
    appoint joint managing conservators. TEX. FAM. CODE ANN. § 153.004(b).
    On appeal, Ledezma argues the only evidence of domestic abuse came from Macias, who
    he claims was not credible. He argues that CPS found no violence committed by him against
    J.A.L. and the police reached the same result. He also asserts that Dr. McClung’s report did not
    specifically use the word “violence” and refers us to his own testimony which “tends to explain
    what used to take place between the two parties.”
    Having reviewed the evidence in this case, we conclude the trial court’s finding is
    supported by the evidence. The fact finder is the sole judge of the credibility of the witnesses
    and the weight to be given their testimony. See City of 
    Keller, 168 S.W.3d at 819
    . As the fact
    finder, the trial court was entitled to choose to believe one witness and disbelieve another. 
    Id. Macias testified
    that abuse was routine throughout her relationship with Ledezma and recounted
    specific instances, and the trial was entitled to believe her even in the face of Ledezma’s denials
    and even if some of her testimony contradicted other evidence. Moreover, other evidence
    showed Macias exhibited symptoms of post-traumatic stress syndrome, which Dr. McClung said
    derived in part from her marriage to Ledezma.          Although Dr. McClung’s report did not
    specifically state that Ledezma scored as a “violent” person, he did testify Ledezma scored as an
    “aggressive” person. Hamilton testified she treated Macias for post-traumatic stress disorder as a
    result of family violence and counseled her on coping skills. We overrule the second issue. As
    for Macias’s suggestion that this appeal is frivolous and request that we order sanctions in the
    amount of $5,000 for “fees and cost associated with the filing of the Appeal,” we deny this
    request.
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    We affirm the trial court’s judgment.
    /Molly Francis/
    120298F.P05                                       MOLLY FRANCIS
    JUSTICE
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    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    IN THE INTEREST OF J.A.L, A CHILD,                  On Appeal from the 256th Judicial District
    Court, Dallas County, Texas
    No. 05-12-00298-CV                                  Trial Court Cause No. DF-09-06253.
    Opinion delivered by Justice Francis,
    Justices O’Neill and Fillmore participating.
    In accordance with this Court’s opinion of this date, the judgment of the trial court is
    AFFIRMED.
    It is ORDERED that appellee Miriam Macias recover her costs of this appeal from
    appellant Jorge Ledezma.
    Judgment entered this 15th day of August, 2013.
    /Molly Francis/
    MOLLY FRANCIS
    JUSTICE
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