in the Interest of A.M., a Child , 418 S.W.3d 830 ( 2013 )

AFFIRM; and Opinion Filed December 16, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00907-CV
IN THE INTEREST OF A.M., A CHILD
On Appeal from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF09-12865
OPINION
Before Justices O’Neill, Lang-Miers, and Evans
Opinion by Justice O’Neill
In this suit affecting the parent child relationship, Father has appealed numerous
procedural and evidentiary rulings including (1) a finding of domestic violence against him, (2)
various evidence admitted at trial, (3) the validity of Mother’s divorce from her prior husband
and its relation to the division of community property, and (4) Mother’s appointment as sole
managing conservator. We affirm the trial court’s judgment. Because the facts are well-known
to the parties, we shall address only those relevant to dispose of each issue. TEX. R. APP. P. 47.1.
Entry of a Protective Order Without First Conducting a De Novo Review
In his first issue, Father argues the trial court abused its discretion by entering a
protective order based upon the associate judge’s family violence finding without first
conducting a de novo hearing after a timely request. A trial court abuses its discretion if it fails
to rule on a party’s appeal from an associate judge’s report. See Fountain v. Knebel, 45 S.W.3d
736, 740 (Tex. App.—Dallas 2001, no pet.).
Pursuant to the family code, a judge may refer certain matters to an associate judge for a
hearing. TEX. FAM. CODE ANN. § 201.005 (West 2008). Upon ruling on the referred matter, the
associate judge is to issue a report, which may contain the associate judge’s findings,
conclusions, or recommendations. Id. § 201.11(a). A party has the right to appeal the associate
judge’s report to the referring court within seven days of receiving proper notice of the associate
judge’s ruling. Id. § 201.015(a) (West Supp. 2012). A party who timely appeals the associate
judge’s report is entitled to a hearing de novo before the referring court. Fountain, 45 S.W.3d at
739.
On September 17, 2009, an associate judge entered a temporary protective order, which
included a finding of a history of domestic violence against Father because “family violence has
occurred and is likely to occur in the future.” The associate judge’s protective order extended to
both Mother and A.M, the child of the marriage.
Father appealed the associate judge’s finding of a history of family violence and the
issuance of a protective order. He requested a de novo hearing on September 21, 2009, which
fell within the statutory deadline for requesting review. See TEX. FAM. CODE ANN. § 201.015(a)
(party must request de novo review within seven days of associate judge’s recommendation).
The record shows the parties appeared before the trial court on October 8, 2009, but the de novo
hearing was reset for November 10, 2009.
On November 5, 2009, the parties entered into a Rule 11 agreement in which the parties
stipulated the following:
It has been represented to the Court that there has been no pattern of child neglect
or family violence by any party to this case within the two years preceding the
filing of this case or during the pendency of this case. Mother will agree to drop
the Protective Order currently in place against father and will agree to sign or
execute any additional documents necessary to accomplish removal of the current
protective order for the benefit of Mother and against Father.
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The de novo hearing was then removed from the trial court’s docket by agreement. Findings of
fact and conclusions of law later entered by the trial court state the trial court “declined to enter
an Order based upon the Rule 11 Agreement on or about February 4, 2010.” However, the
record does not show any further action by Father to reset his appeal on the trial court’s docket.
We agree with Mother that Father’s inaction after the Rule 11 agreement waived his right
to a de novo hearing of the associate judge’s finding of family violence and entry of a protective
order. While section 201.015(f) provides that after notice, the referring court “shall hold a de
novo hearing not later than the 30th date” after a request, a party may also waive his right in
writing or on the record. See TEX. FAM. CODE ANN. §§ 201.015(f), (g) (West Supp. 2012). The
purpose of section 201.015(f) is to require the prompt resolution of appeals from an associate
judge’s ruling. See In re A.J.F., 313 S.W.3d 475, 477 (Tex. App.—Dallas 2010, no pet).
Although Father did not waive his de novo review in writing, we conclude that by agreeing to
remove the hearing from the docket after the parties entered into a Rule 11 agreement, Father
indicated to the trial court his desire to no longer pursue a de novo review, as there was no longer
any issue for the trial court to review that needed “prompt resolution.” Id.
In reaching this conclusion, we are not persuaded by Father’s reliance on Fountain v.
Knebel, 45 S.W.3d 736, 739 (Tex. App.—Dallas 2001, no pet.) in which this court stated, “Once
a party has filed a notice of appeal, the party has completed the prerequisites necessary to be
entitled to a de novo hearing.” In that case, the party requesting de novo review of a discovery
ruling timely filed her notice of appeal and despite the trial court’s attempts to resolve the dispute
informally, the appealing party continued to insist upon her right to a de novo review. Id. In
fact, she appeared for a hearing on her appeal no less than three times and demanded a
continuance when the case was called to trial because the referring court had failed to rule on her
appeal. Id. Thus, unlike the present facts, there was no indication to the trial court in Fountain
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that the appealing party wished to waive her right to a de novo hearing. Rather, the party in
Fountain continued to vigorously pursue a hearing, unlike Father. Accordingly, based on the
facts before us, we cannot say the trial court abused its discretion by failing to conduct a de novo
hearing. We overrule Father’s first issue.
Admission of Transcription of Tapes
In his third issue, appellant argues the trial court erred by admitting the transcriptions of
three audio tape recordings, over his objection, because Mother failed to disclose and produce all
the tapes in her possession despite a proper discovery request. Mother responds Father has
waived his arguments and alternatively, he was not unfairly surprised or prejudiced by the
admission of the transcripts.
We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion. Bufkin v. Bufkin, 259 S.W.3d 343, 351 (Tex. App.—Dallas 2008, pet. denied). The
trial court’s evidentiary ruling will be upheld if there is any legitimate basis for it. Id. The trial
court abuses its discretion only if it acts in an arbitrary or unreasonable manner without reference
to any guiding rules or principles. Id.
Although Father argues rule of civil procedure 193.6(a) requires automatic exclusion of
the transcripts, we disagree. Texas Rule of Civil Procedure 193.6(a) provides that a party “who
fails to make, amend, or supplement a discovery response in a timely manner may not introduce
in evidence the material or information that was not timely disclosed,” unless the court finds
there was good cause for the failure to make, amend, or supplement the discovery response, or
the failure to make, amend, or supplement will not unfairly surprise or prejudice the other party.
TEX. R. CIV. P. 193.6(a).
The record shows Mother had forty-eight hours of tape recordings from her interactions
with Father between March and July of 2009. Mother’s attorney picked three portions of the
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recordings that were “really important” and had those portions translated to support her
allegation of family violence by Father. 1 Father was aware of these recordings when Mother
submitted them on September 16, 2009. The transcripts of the recordings were labeled as
“Recording Number Four 4/13/09 6 07pm Length of recording 18 23 minutes,” “Recording
Number Ten 04/19/09 3 14pm 1 hour 9 mins length,” and “Recording Number 18 06/18/09 8
36pm Length of recording 15 03 minutes.” Thus, the numbering of the transcripts clearly
indicated there were at least eighteen tapes. Additionally, the Rule 11 agreement between the
parties further negates his contention that he was unaware of the tapes because it provided that
“Mother will destroy any and all audio and video tapes in her possession other than the 3
recordings entered into evidence in the 255th District Court.” It is disingenuous for Father to
claim he was surprised or suffered “trial by ambush” when the trial court allowed the three
transcripts into evidence. 2
Father’s argument is further weakened by the fact he failed to file a motion to compel or
a motion for sanctions prior to trial once he knew about the existence of other tapes. See, e.g.,
Lewis v. W. Waste Indus., 950 S.W.2d 407, 410 (Tex. App.—Houston [1st Dist.] 1997, no writ)
(noting the failure to file a motion for sanctions or a motion to compel waives any right to
exclude testimony). Thus, we cannot conclude the trial court abused its discretion by allowing
the transcripts of three tape recordings into evidence.
However, even if the trial court erred in admitting the evidence, Father cannot show
harm. A successful challenge to an evidentiary ruling usually requires the complaining party to
show that the judgment turns on the particular evidence excluded or admitted, and the error was
calculated to cause and probably did cause the rendition of an improper judgment. Brownsville
1
Mother and Father are originally from Pakistan.
2
The trial court sustained Father’s objection to any testimony regarding the tapes and did not allow the tapes themselves into evidence.
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v. Alvarado, 897 S.W.2d 750, 753–54 (Tex. 1995); see also TEX. R. APP. P. 44.1. In determining
if the excluded evidence probably resulted in the rendition of an improper judgment, a court must
review the entire record. Brownsville, 897 S.W.2d at 753.
Father contends the admission of the transcripts probably caused the rendition of an
improper verdict because the record shows the social study, which included reference to the
tapes, was critical to the counselor’s conclusions that the parents did not have the ability to make
joint decisions and Mother should be sole managing conservator.
The key issue Father overlooks is that regardless of what the other tapes may have shown
regarding his character, the transcripts of the three tapes were sufficient to establish Father’s
abusive nature toward Mother and a finding of family violence. The transcripts included the
following statements by Father. “I’m gonna break your face.” “I hit you again and again
because you don’t reform yourself.” “I’m telling you to be quiet. I don’t want to hear a sound
from you. Be quiet. Shut up, shut, up, shut up you bitch. ” “Why have you been so quiet for the
last hour? That’s why I hit you. You ask me why I hit you on everything, that’s why I hit you.
Now tell me, answer me. You bitch, you don’t say anything logical.” “Don’t give me lip,
because if you do, I’ll hit you. I can’t tolerate your lip.” “Have you realized, even after beating
you up so much the other day, you have been repeating the same thing over and over again. You
don’t understand words, nor do you understand being beaten.” “I’m gonna break your face if
you give me bullshit. . . I’ll slap you and break your teeth.”
In addition, Mother testified to Father’s abusive nature and Mother’s friend testified to
bruising on Mother. Accordingly, we cannot conclude Father has established he was harmed by
the admission of the taped transcriptions under rule 44.1. Father’s third issue is overruled.
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Failure to Grant a Continuance
In his fourth issue, Father claims the trial court abused its discretion by denying his
request for a continuance after he allegedly discovered Mother failed to produce the other tapes.
Mother responds Father has failed to preserve his issue for review because his oral motion for
continuance does not comport with Texas Rule of Civil Procedure 251. We agree with Mother.
When a party moves for continuance, rule 251 requires the party to show sufficient cause
supported by affidavit, consent of the parties, or by operation of law. TEX. R. CIV. P. 251. The
record shows Father asked for an oral continuance during trial, but did not support his request
with an affidavit as required by rule 251. Therefore, his oral motion does not satisfy the
provisions of rule 251, and he failed to preserve his complaint for our review. See Strong v.
Strong, 350 S.W.3d 759, 762 (Tex. App.—Dallas 2011, pet. denied); Taherzadeh v. Ghaleh-
Assadi, 108 S.W.3d 927, 928 (Tex. App.—Dallas 2003, pet. denied); Favaloro v. Comm’r for
Lawyer Discipline, 13 S.W.3d 831, 838 (Tex. App.—Dallas 2000, no pet.). Father’s fourth issue
is overruled.
Refusal to Vacate the Protective Order
In his second issue, Father argues the trial court erred by refusing to grant his April 30,
2010 motion to vacate the protective order containing a family violence finding. Specifically, he
argues the trial court committed reversible error when it refused “to vacate a PO entered
adopting an associate judge’s findings and recommendations in its report without [ . . . ]
conducting a de novo hearing when a timely request for such a hearing had been made.”
As concluded above, the trial court did not abuse its discretion by failing to conduct a de
novo hearing; therefore, Father’s argument is without merit. However, Father also asserts there
is no evidentiary support for the denial of the motion to vacate. We interpret Father’s argument
as challenging the legal and factual sufficiency of the evidence supporting the trial court’s
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finding of family violence. Thus, we shall review the evidence accordingly. See, e.g., Taite v.
Zapata, No. 02-10-00391-CV, 2011 WL 5118841, at *1 (Tex. App.—Fort Worth Oct. 27, 2011,
no pet.) (mem. op.) (applying a legal and factual sufficiency review to the appeal of a protective
order); Clements v. Haskovec, 251 S.W.3d 79, 84 (Tex. App.—Corpus Christi 2008, no pet.)
(same); Vongontard v. Tippit, 137 S.W.3d 109, 112–13 (Tex. App.—Houston [1st Dist.] 2004,
no pet.) (same).
In determining whether the evidence is legally sufficient to support the finding under
review, we must consider evidence favorable to the finding if a reasonable fact-finder could and
disregard evidence contrary to the finding unless a reasonable fact-finder could not. Taite, 2011
WL 5118841, at *1. If there is more than a scintilla of evidence to support the finding, the legal
sufficiency challenge fails. F.D.I.C. v. F&A Equip. Leasing, 854 S.W.2d 681, 685 (Tex. App.—
Dallas 1993, no writ). An assertion that the evidence is factually insufficient to support a finding
means the evidence supporting the finding is so weak, or the evidence to the contrary is so
overwhelming, that the finding should be set aside. Id. at *2.
Father claims Mother cited “only to the clerk’s record and exhibits from the trial on the
merits in 2011 as evidentiary support for her argument that it was not error in 2010 to fail to
vacate the PO.” (Emphasis in original). Father’s assertion is incorrect. Mother cited to
transcripts of tape recordings between her and Father, which she submitted to the court on
September 16, 2009. Thus, the trial court had the recordings in its possession prior to the
September 17, 2009 entry of the temporary protective order, which was the basis for the final
protective order.
As stated above, the transcripts contained many statements by Father indicating
emotional and physical abuse against Mother. Based on this evidence, we conclude the evidence
is both legally and factually sufficient to support the trial court’s finding that family violence had
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occurred, that family violence was likely to occur in the future, and Father had committed family
violence against Mother. See TEX. FAM. CODE ANN. § 71.004 (West 2008) (defining “family
violence” to mean “any act by a member of a family or household against another member of the
family or household that is intended to result in physical harm, bodily injury, assault, or sexual
assault or that is a threat that reasonably places the member in fear of imminent physical harm,
bodily injury, assault . . . .”). Appellant’s second issue is overruled.
Exclusion of Cultural Context Evidence
In his fifth issue, Father argues the trial court abused its discretion by sustaining Mother’s
objection to testimony by Donna Milburn, the court-appointed psychologist, regarding
discussions the psychologist had with a third-party Muslim male concerning cultural context of
the tapes between Mother and Father. Mother responds Father waived his argument by failing to
make an offer of proof and even if properly preserved, the trial court acted within its discretion in
excluding the testimony.
Here, the record shows Milburn testified she consulted with an Iranian-born industrial
engineer about cultural issues because she wanted to make sure she understood the Middle
Eastern culture when she considered parental placement of the child. Mother objected to the
testimony as hearsay “from someone who is not a professional in the field.”
The trial court then asked how the engineer’s statements would be appropriate to rely on
in evaluating the case. Milburn responded:
I am required to make sure that I am being culturally aware. We have an ethical
responsibility as psychologists to make sure we’re not taking American values
and transposing those on the individuals that we’re making interpretations or
providing services to . . . I was contacting him as a middle eastern Muslim man
who was born in the middle east and immigrated over here to the United States. . .
. I wanted to get someone who actually grew up in that region of the world to
make sure I wasn’t missing any kind of cultural issues or that I was
misinterpreting something from a cultural standpoint.
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She further stated she could not find anyone in the Dallas or Collin County area with a
psychology background or involvement with the “psych association.” The trial court then
sustained Mother’s objection. Father did not make an offer of proof regarding the excluded
evidence.
Error is not preserved with regard to the exclusion of evidence unless the substance of the
evidence is made known to the court by offer or was apparent from the context within the
questions asked. TEX. R. EVID. 103(a)(2); Akin v. Santa Clara Land, Co., 34 S.W.3d 334, 339
(Tex. App.—San Antonio 2000, pet. denied). Without an offer of proof, the appellate court
cannot determine whether the exclusion of evidence was harmful. Perez v. Lopez, 74 S.W.3d 60,
66 (Tex. App.—El Paso 2002, no pet.).
Father argues the questions asked and answered by Milburn, as outlined above, made it
apparent from their context that “what Dr. Milburn would have testified to was the middle
eastern professional’s statement which Dr. Milburn considered in reaching her opinion that the
statements and interaction reflected on the tapes, when placed in the cultural context, were not
indicative of violence toward Mother or [his] inability to parent the Child.” We do not agree.
Comments on the reasons for the testimony or why the testimony is admissible are
insufficient; the proponent must describe the actual content of the testimony. Mathews v. Dallas
Cnty., No. 05-01-00095-CV, 2001 WL 1671162, at *1 (Tex. App.—Dallas Dec. 20, 2001, no
pet.). Moreover, while the reviewing court may be able to discern from the record the nature of
the evidence and the propriety of the trial court’s ruling, without an offer of proof, we can never
determine whether exclusion of the evidence was harmful. Perez, 74 S.W.3d at 66. Thus, when
evidence is excluded by the trial court, the proponent of the evidence must preserve the evidence
in the record in order to complain of the exclusion on appeal. Id. Because Father failed to make
such an offer, he preserved nothing for our review. We overrule his fifth issue.
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Testimony Regarding Battered Women
In his sixth issue, Father argues the trial court abused its discretion by overruling his
objection to the testimony of Mary Kay Hamilton, an employee from a battered women’s shelter.
Mother argues Father waived his argument by not objecting when the same or similar evidence
came in later through Hamilton’s testimony. We review rulings on the admissibility of evidence
for abuse of discretion. Yzaguirre v. KCS Res., Inc., 47 S.W.3d 532, 543 (Tex. App.—Dallas
2000), aff’d, 53 S.W.3d 368 (Tex. 2001).
The general rule is that error in the admission of testimony is deemed harmless if the
objecting party subsequently permits the same or similar evidence to be introduced without
objection. See Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007).
Here, the record shows Hamilton was a counselor at Genesis Women’s Shelter. She testified
regarding whether it was typical for women of domestic violence to recant statements about
abuse and to return to their abuser. Father objected that Hamilton was not qualified to answer
such questions, and the trial court sustained the objection.
Hamilton then continued to answer questions regarding her nine-years of experience at
the shelter and her observations of certain behavior patterns of domestic abuse victims. When
asked, “[D]o you often see women do things even to their own disadvantage in court cases in
order to get the court case over with?,” Father objected. Father alleged, “This line of questioning
is anecdotal in nature.” The trial court overruled his objection.
Hamilton then continued to testify, without objection, about her observations of Mother
during counseling. She testified Mother made statements such as, “Whatever I can do to get this
over with.” Mother confided the abuse had been going on for some time, and she was “eager” to
settle the divorce.
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Hamilton also testified to the various types of abuse a person may experience, including
physical, emotional, verbal, psychological, spiritual, and financial. Without objection, Hamilton
testified as follows:
I have observed [Mother] being terrified at the thought of what her husband could
do, the threats, which are psychological in nature, by threatening to hurt her, to
hurt her family, to have someone follow her and kill her, things like that, that
those kind of–that’s what I would call psychological abuse, that it’s not physical
abuse happening but that the fear of that happening can be devastating.
While Father urges us to consider his objection to “this line of questioning as anecdotal in
nature” as a running objection such that the trial court was made aware of his complaint to the
testimony, we decline his invitation. A party must timely object each time evidence is presented
or risk waiver of potential error. TEX. R. APP. P. 33.1(a); Bay Area Healthcare Group, Ltd., 239
S.W.3d at 235. A timely requested running objection could have preserved his complaint, but
Father failed to make such an objection. Accordingly, and without concluding that Father made
an appropriate objection because Hamilton subsequently testified to the characteristics of
domestic abuse victims and that Mother fit the pattern of such abuse, Father has failed to
preserve his issue for review. We overrule his sixth issue.
Division of Property Based on Void Marriage
In his seventh issue, Father asserts the trial court erred in its division of community
property because Mother was never legally divorced from her prior husband, Firhaad Ja-hangir
Ahed; therefore, there could be no legal marriage between Mother and Father in which to
dissolve and divide community property. Mother responds Father cannot overcome the strong
presumption that their marriage was valid.
Father specifically challenges the trial court’s findings that Mother was twice divorced
from her prior husband in Great Britain and Pakistan prior to her marriage with Father. Thus,
Father contends any alleged marriage to Mother is void.
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The validity of a marriage is reviewed for legal and factual sufficiency. See Nguyen v.
Nguyen, 355 S.W.3d 82, 88 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). When
conducting a legal sufficiency review, we credit favorable evidence if a reasonable fact-finder
could and disregard contrary evidence unless a reasonable fact-finder could not. City of Keller,
168 S.W.3d 802, 827 (Tex. 2005). When determining the sufficiency of the evidence supporting
a finding on which the appellant bears the burden of proof, we set aside the judgment only if it is
so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly
unjust. Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007,
pet. denied). In a bench trial, the trial court acts as the fact-finder and is the sole judge of witness
credibility. Nguyen, 355 S.W.3d at 88. The fact-finder may choose to believe one witness over
another, and we may not impose our own opinion to the contrary. Id.
The family code provides that a “marriage is void if entered into when either party has an
existing marriage to another person that has not been dissolved by legal action or terminated by
the death of the other spouse.” TEX. FAM. CODE ANN. § 6.202(a) (West 2006). When two or
more marriages of a person to different spouses are alleged, we presume that the most recent
marriage is valid against each marriage that precedes it, until one who asserts the validity of a
previous marriage proves its validity. Id. § 1.102 (West 2006); Nguyen, 355 S.W.3d at 89. This
presumption is one of the strongest known to law; it is, in itself, evidence; and it may even
outweigh positive evidence to the contrary. Id. (citing In re Estate of Loveless, 64 S.W.3d 564,
574 (Tex. App.—Texarkana 2001, no pet.)). The presumption’s strength increases with the lapse
of time, acknowledgements by the parties to the marriage, and the birth of children. Nguyen, 355
S.W.3d at 89.
This presumption that the most recent marriage is valid continues until a party proves the
impediment of a previous marriage and its continuing validity. Id. Thus, the presumption places
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the burden of proof on Father to establish (1) the prior marriage and (2) its continuing validity at
the time of the subsequent marriage. Id.; Loera v. Loera, 815 S.W.2d 910, 911 (Tex. App.—
Corpus Christi 1991, no writ). Once evidence is presented to show the previous marriage was
not dissolved, then the fact-finder must determine whether the presumption of validity has been
overcome. Bailey-Mason v. Mason, 122 S.W.3d 894, 898 (Tex. App.—Dallas 2003, pet.
denied). If sufficient evidence is presented to establish the prior marriage and its continuing
validity, any subsequent marriage is void. TEX. FAM. CODE ANN. § 6.202(a).
The trial court admitted evidence of Mother’s July 16, 2004 marriage to Firhaad Ja-
hangir Ahed in the District of Luton, England. The trial court admitted another document
showing a certified search was conducted of the Central Index of Decrees Absolute for England
from 2004 to 2009; however no divorce decree of record between the two parties was found. A
similar document search was also entered into evidence showing there was no record of divorce
between Mother and Firhaad Ja-hangir Ahed in Pakistan. Thus, Father argues he has overcome
the strong presumption that Mother’s marriage to Firhaad Ja-hangir Ahed was legally dissolved.
After admission of this evidence, the trial court, as fact-finder, had to determine whether
Father overcame the presumption of validity of his marriage to Mother. See Bailey-Mason, 122
S.W.3d at 898. In contradiction to Father’s evidence, Mother presented signed documentation
from Firhaad Ja-hangir Ahed, dated October 14, 2005, from the Islamic Cultural Society, Luton
Mosque, that he wished to divorce Mother. The document stated Mother was “totally
emancipated from the matrimonial relationship.” The record further contains a divorce decree
“in accordance [with] Mohammedan Law” signed by Firhaad Ja-hangir Ahed.
In an attempt to refute the validity of these documents, Father presented evidence that he
believed these papers were fraudulent. Specifically, he relied on testimony from Susan Abbey, a
board certified document examiner, who stated “with a reasonable degree of scientific certainty
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that the signature in question is more likely than not to be not genuine.” She believed there were
“quite a few differences” in Firhaad Ja-hangir Ahed’s signature between the documents.
However, she admitted that there will always be slight differences between the same person’s
signature at different times.
Mother testified her father and ex-husband handled the divorce in Pakistan, and she was
later given the divorce deed. She believed she was divorced from Firhaad Ja-hangir Ahed.
Moreover, the rule 11 agreement, though never entered by the trial court, specifically states that
Father agreed, “Based on the representation of my Wife that she was divorced and was not
married to anyone else at the time of her marriage to Aman, Husband’s understanding and
agreement is that his marriage to Wife is valid.”
Although Father presented evidence challenging the validity of his marriage to Mother,
we conclude the record contains both legally and factually sufficient countervailing evidence to
support the trial court’s conclusion that their marriage was valid. As the fact-finder, the trial
court was in the best position to weigh the parties’ credibility and chose to believe Mother’s
evidence regarding her divorce from Firhaad Ja-hangir Ahed. Accordingly, the evidence
supports the trial court’s findings and conclusions that Mother was divorced from Firhaad Ja-
hangir Ahed and that her marriage to Father was valid. As such, Father cannot complain about
the division of property based on a void marriage. Thus, Father’s seventh issue is overruled.
Appointment of Sole Managing Conservator
In his eighth issue, Father challenges the trial court’s order appointing Mother sole
managing conservator. Mother responds the evidence is sufficient to support the order.
The determination of who should be appointed a managing conservator is left to the
sound discretion of the trial court. 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
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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. Id.
Section 153.004(a) states that when determining whether to appoint a party as sole or
joint managing conservator, the court shall consider evidence of family violence by a party
directed against the party’s spouse, a parent of the child, or anyone younger than eighteen years
old that occurred within a two-year period before filing of the suit or during the pendency of the
suit. TEX. FAM. CODE ANN. § 153.004(a) (West 2008). Thus, a rebuttable presumption exists
that the appointment of parents as joint managing conservators is in the best interest of the child.
Id. § 153.131(b) (West 2008). However, a finding of a history of family violence involving a
parent removes the presumption. Id.; see also Stallworth v. Stallworth, 201 S.W.3d 338, 347
(Tex. App.—Dallas 2006, no pet.). If credible evidence supports a history or pattern of past or
present abuse, then the trial court may not appoint joint managing conservators. TEX. FAM.
CODE ANN. § 153.004(b). In determining whether there is credible evidence, the trial court shall
consider whether a protective order was rendered against the parent during the two year period
preceding the filing of the suit or while the suit was pending. Id. § 153.004(f). Where parties
testify to different versions of the same incident, the trial court is the sole judge of the weight and
credibility of the evidence. Stallworth, 201 S.W.3d at 347.
Father relies on his complaint in issue one regarding the entry of the protective order and
his complaint in issue three regarding the court’s consideration of the audio tapes to support his
argument that the trial court abused its discretion by appointing Mother sole managing
conservator. He concedes that “if the existence of the PO can be properly considered” and “if
the recommendation in the Social Study is properly considered,” then “there is evidentiary
support” to rebut the presumption of joint managing conservatorship. Having overruled both of
the issues Father relies on to support his arguments, we likewise conclude the record supports the
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trial court’s order appointing Mother as sole managing conservator. We overrule Father’s eighth
issue.
Cumulative Error
In his final issue, Father argues based on the above issues the trial court has committed
cumulative error requiring reversal. While some reviewing courts have recognized a
“cumulative-error doctrine” in situations where the record shows multiple errors that in isolation
are not reversible but in combination give rise to reversible error, the cumulative error doctrine
does not apply in this case because we have not found any errors committed by the trial court.
See Univ. of Tex. v. Hinton, 822 S.W.2d 197, 205 (Tex. App.—Austin 1991, no writ).
Accordingly, we overrule Father’s ninth issue.
Conclusion
Having overruled all of Father’s arguments, we affirm the trial court’s judgment.
/Michael J. O'Neill/
MICHAEL J. O’NEILL
JUSTICE
120907F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF A.M., A CHILD On Appeal from the 255th Judicial District
Court, Dallas County, Texas
No. 05-12-00907-CV Trial Court Cause No. DF09-12865.
Opinion delivered by Justice O’Neill.
Justices Lang-Miers and Evans participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Quratulain Malik recover her costs of this appeal from
appellant Aman Malik.
Judgment entered this 16th day of December, 2013.
/Michael J. O'Neill/
MICHAEL J. O’NEILL
JUSTICE
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