Burns v. Burns

The court affirms the final decree of divorce in which the appellee was named joint managing conservator with the exclusive right to establish the primary residence of the parties' minor child, and appellant was ordered to pay child support.

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Click here for the full text of this decision The court affirms the final decree of divorce in which the appellee was named joint managing conservator with the exclusive right to establish the primary residence of the parties’ minor child, and appellant was ordered to pay child support. FACTS:Husband and wife separated in January 2002 after two years of marriage. Wife claimed that when she tried to leave Van Zandt County, where the couple had resided, with their daughter, husband and his father physically attacked her. Husband said he acted defensively. Wife moved to Dallas County anyway, with the child. Husband filed for divorce in Van Zandt County. Meanwhile, wife filed an application for a protective order in Dallas County based on the separation event. The Dallas County court issued an ex parte protective order. Wife then filed a counter petition in which she alleged husband had committed an act of family violence and to which she attached a copy of the protective order. During a hearing on temporary orders, the Van Zandt County court appointed husband and wife as joint managing conservators of the daughter. Four days later, the in a hearing attended by husband, the Dallas court issued a protective order finding that “family violence has occurred and that family violence is likely to occur in the foreseeable future.” Wife filed a motion for additional temporary orders in Van Zandt County, but she did not obtain a ruling on the motion. In July 2002, the Van Zandt County court held a bench trial on the merits. The protective order was not introduced into evidence, but husband admitted to its entry. The court ruled from the bench that husband had the exclusive right to establish the primary residence of the minor child. The court denied wife’s request to examine Family Code �153.004, which provides that the trial court is to consider evidence of the intentional use of abusive physical force by a party against the party’s spouse, and further provides that the trial court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present physical abuse by one parent directed against the other parent. The trial court also ordered wife to pay child support. Wife asked the court to file findings of fact and conclusions of law, but it never did. Wife challenges the court’s rulings, primarily related to �153.004. HOLDING:Affirmed. Wife argues the trial court erred in: 1. failing to consider evidence of husband’s intentional use of abusive force; 2. naming husband joint managing conservator; and 3. naming husband joint managing conservator with the exclusive right to establish the primary residence of the minor child. She cites �153.004 in support of each contention. The court notes that all of wife’s arguments depend on the existence of evidence of the intentional use of abuse force or credible evidence of a history or pattern of physical abuse. yet, the ex parte order found only a clear and present danger of family violence. A finding of “family violence,” without description, was not entered until the final order. That order occurred prior to the first hearing in Van Zandt County hearing and was not presented to that court during the bench trial. Furthermore, while there was conflicting testimony over what happened during the separation event, there was no evidence of a pattern or history of abuse. Consequently, the court rules the trial court did not abuse its discretion. The court says it is undisputed wife filed her request for findings of fact and conclusions of law, or that the trial court ignored the request. However, wife did not file a “Notice of past Due Findings of Fact and Conclusions of Law” as required by T.R.Civ.P. 297. Finally, the court affirms the order for wife to pay child support because it is based on her argument that the trial court erred in failing to name her sole managing conservator with the exclusive right to establish the child’s residence. OPINION:Lang, J.; Morris, O’Neill and Lang, JJ.

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