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Family Law No. 03-02-00762-CV, 5/30/2003. Click here for the full text of this decision FACTS: This is a contested fault divorce case which includes the conservatorship of two children. Following a bench trial, the trial court granted James Ray Coleman a divorce, determined custody and divided the property. The final orders grant joint managing conservatorship over the children to Mindy and James Coleman. The orders also separate the children’s primary residence – the son’s primary residence being established by Mindy Coleman and the daughter’s primary residence established by James Coleman. Mindy Coleman appeals the orders. HOLDING: Reversed and remanded. Mrs. Coleman claims that the district court abused its discretion by appointing the parents as joint managing conservators of the two children because, at trial, Mr. Coleman allegedly admitted to sexually abusing Mrs. Coleman. The district court is the sole judge of the weight and credibility of the evidence. The district court obviously did not find that the testimony regarding the parties’ sexual activities amounted to a history or pattern of physical or sexual abuse by Mr. Coleman. Because the district court obviously did not find the testimony to be credible evidence of a history of sexual abuse, it was not bound by Texas Family Code �153.004(b). In Texas, there is a rebuttable presumption that the appointment of parents as joint managing conservators is in the best interest of the child. �153.131(b). Moreover, the matter of determining who should be appointed managing conservator is left to the sound discretion of the trial court. The trial court is in a better position to determine what will be in the best interest of the children since it faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent. Martinez, 953 S.W.2d at 403. Its judgment will not be disturbed on appeal unless there has been a clear abuse of discretion. Mrs. Coleman’s only argument on appeal was that the district court abused its discretion in appointing the parents as joint managing conservators because of alleged sexual abuse by Mr. Coleman. However, the only evidence in the record did not amount to an admission of sexual abuse, much less a history. Given the rebuttable presumption, the court cannot say it was an abuse of discretion for the district court to appoint the parents joint managing conservators. There is a long line of jurisprudence in Texas supporting a preference that two or more children of a marriage should not be divided absent clear and compelling reasons. Consistent with this jurisprudence, the Legislature articulated Texas’ preference that children be kept together in the Family Code. �153.251(c). The Colemans have two children under the age of 7. The permanent orders have the effect of allowing the children to be together for only short periods of time. Mr. Coleman lives in Texas, while Mrs. Coleman lives in Louisiana. Subsequent to the issuance of the permanent orders, a request for findings of fact and conclusions of law articulating the “clear and compelling reasons” for the separation of the children was made by Mrs. Coleman to the district court but went unanswered. There are no obvious guiding principles that the district court may have used in ordering the permanent separation of the children. Mr. Coleman’s argument regarding the district court’s orders effectively encompasses a single sentence: “The district court did not abuse its discretion.” Mr. Coleman points to no circumstances in this case which would support the district court’s decision. Neither does he cite to any case law. The court holds that the district court abused its discretion in ordering the separation of the children without articulating a clear basis for doing so. The best interest of the children is always the “top priority” when determining conservatorship, possession and access. However, the Legislature expressed Texas’ policy to keep children of the same marriage together. The age of the children, the location of the parents, the present and future emotional and physical needs of the children, the stability of each parent’s home and the present and future emotional and physical danger to the children are factors to be considered in determining conservatorship, possession and access. On remand, the district court must articulate clear and compelling reasons for separating the children, based on the record in this case, or redetermine the primary residences of the children based on their best interests, consistent with the holding in this opinion. OPINION: Puryear, J.; Law, C.J., Smith and Puryear, JJ.

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