classic-century-inc-fka-classic-century-homes-inc-v-deer-creek ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-259-CV
IN THE INTEREST OF A.S.Z.,
A MINOR CHILD
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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Sergio Z. appeals the conservatorship and child support
provisions of the trial court’s order in the suit affecting the parent-child
relationship in favor of Appellee, Patricia J., who is the mother of Sergio’s son,
A.S.Z. In eight issues, Sergio contends that the trial court erred by (1)
awarding Patricia’s attorney’s fees as child support, (2) not awarding him court
costs, expenses, and all relief in law and equity, (3) failing to allow him an
uninterrupted thirty-day summer possession of A.S.Z., (4 and 5) awarding
1
… See T EX. R. A PP. P. 47.4.
Patricia possession of A.S.Z. on every Christmas Eve, Christmas Day, and
Easter, (6) not requiring the parents to alternate in the pickup and delivery of
A.S.Z., (7) failing to award Sergio full joint managing conservatorship with no
restrictions, and (8) failing to reduce child support payments to reflect Sergio’s
current income. Because we hold that the trial court’s awarding of Patricia’s
attorney’s fees as child support was improper, we modify the trial court’s
judgment in part and affirm it as modified.
In his first issue, Sergio argues that the award of $20,315.00 in
attorney’s fees as child support was improper. We agree. The legislature has
specifically distinguished the assessment of fees and costs in child support
enforcement actions from the assessment of attorney’s fees and costs in a suit
affecting the parent-child relationship because of the potentially serious
consequences that stem from an award of attorney’s fees as child support. 2
In a child support enforcement action, the trial court may assess attorney’s fees
as child support, but in a suit affecting the parent-child relationship, the trial
court may assess attorney’s fees as costs, not child support.3
2
… Naguib v. Naguib, 183 S.W.3d 546, 547 (Tex. App.—Dallas 2006, no
pet.); see also T EX. F AM. C ODE A NN. §§ 106.002, 157.167(a) (Vernon Supp.
2008).
3
… Finley v. May, 154 S.W.3d 196, 199 (Tex. App.— Austin 2004, no
pet.).
2
The order appealed in this case involves attorney’s fees incurred in a suit
affecting the parent-child relationship but does not involve the enforcement of
delinquent child support obligations. Accordingly, we sustain Sergio’s first
issue. We therefore modify the trial court’s judgment by deleting the phrase
“as additional child support” from the section entitled “Attorney’s Fees.” 4
In his second issue, Sergio contends that he is entitled to court costs and
any other remedies in law and equity to which he is entitled. To the extent that
Sergio is complaining that the trial court erred by not ordering Patricia to pay
his court costs, we disagree. Section 106.001 of the Texas Family Code
provides that “[t]he court may award costs in a suit or motion under this title
and in a habeas corpus proceeding.” 5 Here, the trial court ordered that costs
“are to be borne by the party who incurred them.” Because Sergio does not
explain why the trial court should have ordered Patricia to pay his costs, we
cannot hold that the trial court abused its discretion.
To the extent that Sergio is contending that he is entitled to court costs
at the appellate level, we note that our judgment reflects that appellate court
costs are split equally between Sergio and Patricia. We overrule Sergio’s
4
… See In re M.A.N.M., 231 S.W.3d 562, 566 (Tex. App.—Dallas 2007,
no pet.); Finley, 154 S.W.3d at 199.
5
… T EX. F AM. C ODE A NN. § 106.001 (Vernon 2002).
3
second issue.
In his fourth, seventh, and eighth issues, Sergio asserts that the trial court
abused its discretion by awarding Patricia possession of A.S.Z. on every
Christmas Eve and Christmas Day, failing to grant him full joint managing
conservatorship without any restrictions, and failing to reduce his child support
payments to reflect his current income. However, because Sergio agreed to
these provisions at trial, he cannot now complain on appeal that the trial court
abused its discretion.6 Accordingly, we overrule Sergio’s fourth, seventh, and
eighth issues.
In Sergio’s third and fifth issues, he argues that the trial court abused its
discretion by failing to allow him an uninterrupted thirty-day summer possession
of A.S.Z. and awarding Patricia possession on every Easter. We review the trial
court's decisions on custody, control, possession, and visitation matters for an
abuse of discretion.7 A trial court abuses its discretion if it acts arbitrarily or
6
… See McLendon v. McLendon, 847 S.W.2d 601, 609 (Tex.
App.—Dallas 1992, writ denied) (holding that because father agreed to the
omission of specific periods of possession, he cannot complain on appeal that
the failure to grant him specific terms is reversible error).
7
… Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); see also
Jacobs v. Dobrei, 991 S.W.2d 462, 463 (Tex. App.—Dallas 1999, no pet.).
4
unreasonably, without reference to guiding principles. 8
“The best interest of the child shall always be the primary consideration
of the court in determining the issues of conservatorship and possession of and
access to the child.” 9 There is a rebuttable presumption that the standard
possession order (1) provides reasonable minimum possession for a parent
named as a joint managing conservator and (2) is in the child's best interest. 10
If special circumstances make the standard possession order unworkable or
inappropriate, however, “[t]he court shall render an order that grants periods of
possession of the child as similar as possible to those provided by the standard
possession order.” 11 In deviating from the standard possession order, the trial
court may consider (1) the age, developmental status, circumstances, needs,
and best interest of the child; (2) the circumstances of the managing
conservators; and (3) any other relevant factor. 12 “The terms of an order that
denies possession . . . may not exceed those that are required to protect the
8
… Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
9
… T EX. F AM. C ODE A NN. § 153.002 (Vernon 2002).
10
… Id. § 153.252.
11
… Id. § 153.253.
12
… Id. § 153.256; Garza v. Garza, 217 S.W.3d 538, 553 (Tex.
App.—San Antonio 2006, no pet.).
5
best interest of the child.” 13
Sergio complains that the trial court abused its discretion by ordering that
he shall have possession of A.S.Z. for two fourteen-day periods instead of an
uninterrupted thirty-day period in the summer. Because the trial court’s order
provides for two fourteen-day visits in the summers of 2007-2009 and allows
Sergio uninterrupted thirty-day visits in the summers of 2010-2018, and
because it is now 2008, we will address this issue as it pertains to summers
2008-2009.
Section 153.312(b)(2)(A) of the Texas Family Code provides that upon
written notice,
the possessory conservator shall have possession of the child for
30 days beginning not earlier than the day after the child’s school
is dismissed for the summer vacation and ending not later than
seven days before school resumes at the end of the summer
vacation, to be exercised in not more than two separate periods of
at least seven consecutive days each.14
Regarding summer visitation, Patricia testified that she did not want
Sergio to have custody of A.S.Z. for an uninterrupted thirty days because of
A.S.Z.’s age (he was six years old at the time of trial), she did not believe that
Sergio could control his temper, and Sergio did not have enough patience for
13
… T EX. F AM. C ODE A NN. § 153.193 (Vernon 2002).
14
… Id. § 153.312(b)(2)(A) (Vernon Supp. 2008).
6
A.S.Z. during his weekend visits. At trial, Sergio admitted that he has a low
tolerance for things that “[don’t] make sense.” Because the summer visitation
is consistent with section 153.312, we hold that the trial court did not abuse
its discretion. 15 Accordingly, we overrule Sergio’s third issue.
In his fifth issue, Sergio argues that the trial court abused its discretion
by deviating from the standard possession order by awarding Patricia
possession of A.S.Z. for every Easter. The trial court’s order provides,
PATRICIA [] shall exclusively have possession of the child on each
Easter weekend beginning at 6:00 p.m. on the Saturday
immediately preceding Easter Sunday and ending at 8:00 a.m. on
the Monday immediately following Easter Sunday. If Easter Sunday
falls on the 1st, 3rd, or 5th weekend of the month, SERGIO [] may
opt to make-up the missed time with the child by informing
PATRICIA [] in writing of a Saturday from 6:00 p.m. to Monday at
8:00 a.m. period that occurs on the 2nd and 4th weekend of the
same month in which Easter occurs or the month immediately
following . . . .
Patricia testified that Sergio is an atheist and does not celebrate holidays.
She further stated that on Easter, her family has a large get-together and an
Easter egg hunt. She stated that because she is Christian and Sergio is not,
she believes that she should be able to celebrate the Christian holidays with
A.S.Z.
15
… See T EX. F AM. C ODE A NN. § 153.312(b)(2)(A); see also Garza, 217
S.W.3d at 553 (holding trial court did not abuse its discretion by deviating from
standard possession order because order was consistent with section 153.312).
7
Sergio testified that he does not celebrate holidays, except when
somebody invites him to be a part of his or her celebration. He further stated
that if he had possession of A.S.Z. on Easter, he would take A.S.Z. to celebrate
the holiday. Sergio recalled two occasions that he went with Patricia and
A.S.Z. to hunt for Easter eggs. He said that he objected to Patricia having
A.S.Z. every Easter because he only gets to see A.S.Z. twice a month and did
not want another holiday taken away from him. He further stated that he
wanted to take A.S.Z. to do things that are fun for him, such as Easter egg
hunting.
Sergio does not refer us to any case law addressing this issue. However,
after reviewing the record, we hold that there is evidence to support the trial
court’s decision. By awarding Patricia Easter holidays and allowing Sergio to
make up the missed weekend with A.S.Z. if Easter should fall on a weekend in
which he would have otherwise had possession, the trial court accommodated
both parents.16 We therefore hold that the trial court did not abuse its
discretion and overrule Sergio’s fifth issue.
In his sixth issue, Sergio argues that the trial court erred by failing to
require the parents to alternate pickup and delivery of A.S.Z. during Sergio’s
16
… See Jacobs, 991 S.W.2d at 464.
8
times of possession. However, because this issue was not litigated in the trial
court or otherwise brought to the trial court’s attention, it was not preserved
for appeal. 17 We overrule Sergio’s sixth issue.
Having sustained Sergio’s first issue, we modify the trial court’s judgment
to delete the provision awarding attorney’s fees as child support. Having
overruled his remaining issues, we affirm the trial court’s judgment as modified.
PER CURIAM
PANEL: DAUPHINOT, J.; CAYCE, C.J.; and LIVINGSTON, J.
DELIVERED: August 14, 2008
17
… See T EX. R. A PP. P. 33.1(a).
9