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Click here for the full text of this decision FACTS:Michael Peck (husband) appealed the property division and the injunction entered in the divorce decree terminating his marriage to Pamela Peck (wife). He argued that the trial court erred 1. in characterizing disability insurance benefits as community property and 2. in entering an injunction prohibiting him, when in possession of the couple’s child, from permitting any woman with whom he was in an intimate or dating relationship to remain overnight in the same residence or lodging. The insurance at issue had been taken out during the marriage by the husband, as a condition of a bank loan that the husband had obtained to open his dental practice. He subsequently purchased three more policies for a total of four disability policies. The premiums for the policies were not paid by the husband’s dental practice but were paid out of the parties’ joint account to avoid federal income taxation of the disability benefits. Although he continued to practice dentistry, the husband began collecting benefits on the policies about five years before the divorce action, when substantial hearing loss in both ears made him “presumptively disabled.” The issue of the injunction prohibiting overnight guests while the husband had custody of the child arose because after the divorce trial, the husband began cohabiting with a divorced woman who had an 11-year-old son. The wife filed a motion requesting the trial court enjoin the parties from having a person of the opposite sex overnight when in possession of the child. The court granted the motion, despite the husband’s testimony that his relationship with the woman was “monogamous” and “in the best interest” of his child. HOLDING:The court affirms the trial court’s judgment. The husband contends the trial court erred in characterizing the disability insurance benefits as community property and dividing future payments between the parties. The wife asserts that the husband judicially admitted at trial that the disability policies were community property, estopping him from contending otherwise. At trial, the husband proposed that the insurance disability benefits be divided equally between the parties for three years or until he is unable to practice dentistry, whichever comes first, and that the husband then receive all the benefits. The husband’s amended inventory and appraisement also states the disability policy benefits were community property. The court points out that five conditions must have occurred for a party’s admission to be conclusive against him: 1. the declaration relied upon must have been made in the course of a judicial proceeding; 2. the declaration was contrary to an essential fact embraced in the theory of recovery or defense asserted by the party; 3. the statement was deliberate, clear, and unequivocal; 4. giving conclusive effect to the declaration would not run contrary to public policy; and 5. the declaration related to a fact upon which a judgment for the opposing party was based. The court finds that, except for one contrary statement in his testimony, the husband made no assertion that the disability insurance policies were his separate property until after the trial court entered its initial divorce decree. Only then did the husband make his separate-property assertion in a motion for new trial and a motion to modify, correct or reform the judgment, both filed the same day. Because the husband had judicially admitted the policies were community property during trial in his testimony, exhibits, opening statement, and closing argument, as well as in his post-trial brief on the issue of the disability policies, the court holds that the issue was conclusively proven, and the husband was barred from asserting otherwise. The court therefore concludes that the trial court did not wrongly characterize the disability insurance benefits. The husband next asserts that the trial court abused its discretion by entering the permanent injunction prohibiting him from permitting any woman with whom he was in an intimate relationship to remain overnight in the same residence or lodging while the child was there. He argues the evidence is legally and factually insufficient to support the trial court’s findings of facts and conclusions of law that, in turn, support the permanent injunction. Specifically, the husband argues that the substance of the order violated his constitutional right of substantive due process because, in the absence of a finding that he is an unfit parent, the order interferes with his fundamental liberty interest in making decisions concerning the care of his child. The court rejects that argument and finds no legal authority that directly required or prohibited the trial court’s entering the order forbidding overnight dates during visitation of the child. The court finds that the trial court had considerable time with the parties and undoubtedly understood better the “forces, powers, and influences” that governed the relationships between and among the husband, the wife and their son. Moreover, the court notes that the trial court imposed the same restriction upon both parties and referred to the visitation provision as a “standard” one. The court finds no reason on the record to assume the husband was unfairly treated and, accordingly, finds no abuse of discretion in the substance of the injunction. The husband’s remaining complaints concerning the injunction challenge the procedures surrounding the entry of that part of the final order. The court rejects the husband’s argument that injunctive relief was not raised by the wife’s motion that led to the injunction. The court holds that the trial court has discretion to place conditions on parents’ visitation even if the pleadings do not request such conditions. The court also holds that, in the family law context, the traditional requirements of a permanent injunction, such as a wrongful act, imminent harm, irreparable injury, and no adequate remedy at law, were not prerequisites for obtaining a permanent injunction. Consequently, the court concludes that the trial court’s use of the permanent-injunction vehicle does not somehow invalidate the order it embodies. OPINION: FitzGerald, J.; Wright, Bridges and FitzGerald, JJ.

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