Johnathan Pena v. Lauren Stoddard ( 2011 )

Opinion issued February 10, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00308-CV

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Jonathan Pena, Appellant

V.

Lauren Stoddard, Appellee

On Appeal from the 308th District Court

Harris County, Texas

Trial Court Case No. 2005-70643

MEMORANDUM OPINION

          Appellant, Jonathan Pena, challenges the trial court’s decree naming appellee, Lauren Stoddard, as sole managing conservator of their child, L.S., assessing child support, and specifying limited periods of supervised visitation by Jonathan Pena.  Pena contends that the trial court abused its discretion by (1) refusing to file additional findings of fact as requested, (2) ordering that Pena’s periods of possession of L.S. be supervised, (3) limiting Pena’s periods of possession of L.S. to less than a standard possession order, and (4) naming Stoddard sole managing conservator of the child.

          We affirm.

BACKGROUND

          L.S. was born on September 16, 2004 to Pena and Stoddard. Pursuant to an Agreed Child Support Review Order (Suit Affecting the Parent-Child Relationship) signed on November 16, 2005, Pena and Stoddard were named joint managing conservators of the child. At the time of that order, Pena and Stoddard were attempting reconciliation, and—by agreement—the trial court did not order child support or designate periods of possession and access for either party.

          The relationship between the parties deteriorated, and Pena filed his Original Petition in Suit Affecting the Parent-Child Relationship on August 1, 2006, asking that he be granted a standard possession order for visitation with the child. Stoddard filed her Original Counterpetition in Suit Affecting the Parent-Child Relationship on August 21, 2006, asking that she be named sole managing conservator of the child and also requesting payment of child support. Pena then enlisted in the United States Army and attended basic training from October 31, 2006 until March 2007. He was then stationed in Fort Lewis, Washington, and he currently remains there on active duty.

          On December 15, 2008, the trial court conducted a one-day bench trial of this matter. Pena was still on active duty in Fort Lewis, Washington at that time, and he did not appear for trial. The parties reached certain stipulations that were read into the record. Lauren Stoddard was called and she testified. The trial court then delivered its decision that Stoddard be named sole managing conservator of the child and that Pena be named possessory conservator of the child.

The trial court signed an Order in Suit Affecting the Parent-Child Relationship on December 30, 2008. Pena filed his request for findings of fact and conclusions of law on January 8, 2009. During the same month, Pena filed a motion for new trial, which was overruled by operation of law.  The trial court later filed its findings of fact and conclusions of law on March 6, 2009. Pena then made a request for additional findings on March 16, 2009, but the trial court made no additional findings.  This appeal followed.

FINDINGS OF FACT

          In his first issue, Pena contends that the trial court erred in refusing to file additional findings of facts that he requested after the conclusion of trial.  An appellant is presumptively harmed when a trial court fails to make sufficient findings of fact, unless the face of the record reflects that the appellant was not harmed.  Panchal v. Panchal, 132 S.W.3d 465, 466–67 (Tex. App.—Eastland 2003, no pet.).  The failure to make sufficient findings of fact becomes harmful error when the appellant is prevented from making an appeal.  Id. at 467.  The remedy for such a harmful error is for the reviewing court to abate the appeal.  Id. The controlling issue is whether the circumstances of the particular case require the appellant to guess at the reasons for the trial court’s decision. Goggins v. Leo, 849 S.W.2d 373, 379 (Tex. App.—Houston [14th Dist.] 1993, no writ); Awad v. Rasmussen-Awad, No. 14-02-01142-CV, 2004 WL 744234, at *3 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (mem. op.).

          Pena requested additional findings of fact regarding family violence and material change.  Those facts bear on the trial court’s order for supervised visitation.  Pena alleges that without such findings he is unable to know why the trial court restricted his periods of possession of L.S. to periods of supervised visitation at Angel House.  However, the failure of the trial court to enter additional findings of fact did not harm Pena because it did not prevent him from making an appeal on that matter. See, e.g., White v. Harris-White, No. 01-07-00521-CV, 2009 WL 1493015, at *6 (Tex. App.—Houston [1st Dist.] May 28, 2009, pet. denied) (mem. op.) (holding trial court’s failure to make requested findings of fact and conclusions of law harmless because appellant was able to present his case on appeal concerning value of community estate).  The face of the record shows that the parties stipulated to supervised visitation and that Pena failed to object when the judge recognized supervised visitation on two occasions.  Pena does not have to guess at why the trial court came to its conclusion on supervised visitation because evidence of the stipulation and of his failure to object is clearly stated in the record.

          We overrule Pena’s first issue.

STIPULATIONS

          In his second issue, Pena contends that the trial court erred in ordering supervised periods of possession of L.S.  The record states:

THE COURT:  The stipulation, go ahead and tell me the stipulation.

MR. TRAVERS:  The stipulation is that if Jonathan Pena resides or is stationed within 150 miles of Houston, Texas, the parties stipulate that that will be — that that is a material change in circumstance to justify the filing of a motion to modify —

THE COURT:  Okay.

MR. TRAVERS:  — but nothing else.  It’s not an automatic modification.  It’s just that — that they meet the element of a material change in circumstances.

THE COURT:  So, what we have left to deal with today is periods of possession, given the current status, and child support?

MR. TRAVERS:  Yes.

. . . .

MS. TAYLOR:  Judge, we would like child support to be according to guidelines for whatever he earns.  If we can’t get that information for today, we’ll continue with the 215 and we’ll file our own modification, but what we are asking for mostly is that visitation continue to — that visitation be supervised and it be through Angel House. And if the Court would like some information about why we feel that way, we would certainly provide that.

MR. TRAVERS:  We stipulate to that.

THE COURT:  I want child support to be the larger of the military allotment or minimum wage, then possession will be what you just dictated.

MS.  TAYLOR: Possess [sic] and access shall be according to whenever he is coming into town he will give Angel House seven days written advance notice so that we can set up a time and both parties will agree to do the paperwork for Angel House, Judge, and Mr. Pena will bear the cost of whatever the fees are with regard to Angel House.

MR. TRAVERS:  Agreed as to fees, and that they cooperate as far as the paperwork.

The record shows that the parties reached certain stipulations, which were read into the record.  The record shows that at the hearing, Stoddard’s attorney clearly stated that Stoddard was seeking supervised visitation.  Stoddard offered to provide evidence of the need for supervised periods of possession; at which point, Pena’s attorney injected “we stipulate to that.”  Pena asserts that the stipulation was unclear as to supervised visitation and that he only stipulated to the payment of fees and completion of paperwork for Angel House. However, the record shows that Pena specifically stipulated to that “visitation be supervised and it be through Angel House,” so it is reasonable to assume that Pena realized Angel House was a supervised visitation facility.  Additionally, later in the proceeding, the trial court reemphasized the contested portion of the stipulation when it pointed out during Stoddard’s testimony that supervised visitation had already been stipulated to by the parties. The record shows that Pena failed to object at either point during the proceeding to contest the supervised visitation; therefore, the challenge to limited and supervised visitation is waived.  See Tex. R. App. P. 33.1(a); see also In re A.R., 236 S.W.3d 460, 473 (Tex. App.—Dallas 2007, no pet.) (mother did not preserve appellate argument that trial court erred when it awarded attorneys’ fees in nature of child support because she did not raise argument in trial court); Goodson v. Castellanos, 214 S.W.3d 741, 760–61 (Tex. App.—Austin 2007, pet. denied) (conservator did not preserve for appellate review complaint that trial court erred in awarding attorneys’ fees in the nature of child support because she did not present complaint to trial court); In re C.S., 198 S.W.3d 855, 857 (Tex. App.—Dallas 2006, no pet.) (“Almost all trial error, even constitutional error, is waived if appellant fails to object to the error at trial.”).[1]

We overrule Pena’s second issue.

LIMITED VISITATION

In his third issue, Pena contends the trial court erred by limiting his periods of possession of L.S. to less than that of a standard possession order.  Again, the record before us reflects that Pena waived this complaint when, at the December 15, 2008 trial, he failed to object to the limited periods of possession, and affirmatively stipulated to them at trial.  See Tex. R. App. P. 33.1(a); In re C.S., 198 S.W.3d at 857 (“Almost all trial error, even constitutional error, is waived if appellant fails to object to the error at trial.”).  We further note that the trial court required Stoddard to set up an email account for Pena to use to communicate with L.S., provided for telephone calls up to three times a week, and allowed for possession and access “at all other times and circumstances as the parties may agree.”

We overrule Pena’s third issue.

MODIFICATION OF CONSERVATORSHIP

In his fourth issue, Pena argues that the trial court erred in removing him as joint managing conservator and naming Stoddard sole managing conservator of L.S.[2]  In support of this argument, Pena relies on subsection 153.131(b) of the Texas Family Code, which provides: “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) (Vernon 2001).  A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.”  Id.  Although this subsection states that a finding of a history of family violence removes the presumption, it does not say that it is the only finding that removes the presumption.  In determining the issues of conservatorship, the best interest of the child is always the primary consideration of the court.  Id. § 153.002 (Vernon 2001); Dennis v. Smith, 962 S.W.2d 67, 68 (Tex. App.—Houston [1st Dist.] 1997, pet. denied).

    

Pena claims that there was no evidence and no finding made by the trial court to show that appointing Pena as a joint managing conservator was not in the best interest of the child.  In particular, he claims that the trial court made no finding of family violence to justify naming him as a possessory conservator.  However, a finding of family violence is not the only reason to change conservator status.  The following factors are reviewed to determine whether the presumption in favor of joint managing conservatorship has been rebutted: (1) benefits to the child, (2) the cooperative decision-making ability of the parents, (3) geographical proximity, (4) the parents’ ability to promote a positive relationship with the other parent, (5) the parents’ prior child-rearing participation, and (6) any other relevant factor.  See Tex. Fam. Code Ann. § 153.134(a) (Vernon Supp. 2009); see also In re the Marriage of Bertram, 981 S.W.2d 820, 825 (Tex. App.—Texarkana 1998, no pet.).

The trial judge faces the parties and the witnesses, observes their demeanor and personality, and feels the forces, powers, and influences that cannot be discerned by merely reading the record.  Cuellar v. Flores, 238 S.W.2d 991, 992 (Tex. App.—San Antonio 1951, no writ).  The trial judge is, therefore, in a better position to analyze the facts, weigh the virtues of the parties, and determine what will be in the best interest of a child.  Id.; see also Naguib v. Naguib, 137 S.W.3d 367, 372 (Tex. App.—Dallas 2004, pet. denied) (“The trial court is in the best position to determine what will be in the best interest of the child, because it faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent.”).

In the trial court, evidence was presented that the parties live in different states, that the parties had difficulty making decisions together, that Pena called Stoddard names, that Pena rarely contacted L.S., that Pena harassed Stoddard when she attempted to contact him by phone, and that it would not be in the best interest of L.S. to have Pena as a joint managing conservator.  In addition, the trial court was aware of the recommendations of the amicus and aware that Pena failed to submit to the social study, the substance abuse evaluation, and the psychological evaluation that had been ordered by the court.  Based on the record, we cannot say that it was an abuse of discretion for the trial court to appoint Stoddard as sole managing conservator.

We overrule Pena’s fourth issue.

CONCLUSION

          We affirm the judgment of the trial court.

                                                                    Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Sharp.

Justice Sharp, dissenting. 

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[1]           We note that Pena filed a motion for new trial. In his motion, Pena complained that there was insufficient or no evidence to support the trial court’s orders, including that of supervised visitation and sole managing conservatorship. However, Pena did not assert that there was no stipulation as to supervised visitation, or that the trial court had misunderstood his stipulation and should not have relied upon it.  We find no place in the record where Pena ever informed the trial court that it had committed any error in regard to his stipulations.

[2]           We note that the record reflects an order in the 2005 Suit Affecting the Parent-Child Relationship (SAPCR), in which the trial court named Pena and Stoddard as joint-managing conservators.  As noted in the background section, possession and access was not determined in that order.  In 2006, Pena filed an original SAPCR seeking possession and access determinations only. Stoddard counter-petitioned seeking sole managing conservatorship, under the guise of an original SAPCR.  At trial, both parties and the trial court treated her request for sole managing conservatorship as if the court had made no prior determination on conservatorship.  At no time during trial did Pena object that a determination regarding conservatorship would, in fact, be a modification of an existing conservatorship order, rather than an original determination.   On appeal, both parties again treat the trial court’s determination of conservatorship as an original determination rather than a modification. Because no complaint has been raised on appeal that the trial court erred in deciding the conservatorship issue as an original determination, and both parties treat analyze the trial court’s determination as an original determination rather than a modification, we, likewise, do so.