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Click here for the full text of this decision FACTS:Shannon Alexander and Harold Rogers met over the Internet in January 1999. Alexander moved to Dallas in March 1999 to live with Rogers and the couple married in September 1999. Their first child, a daughter, was born in December 1999. Their second child, a son, was born in May 2001. Their relationship began to deteriorate in 2001. Rogers claimed there were numerous arguments with name-calling and swearing on both sides. Alexander, on the other hand, contended that Rogers called her names and swore at her, but she never did either to Rogers. Alexander also alleged Rogers began to physically abuse her in March 2001 by grabbing her by the hair. In early 2002, Alexander began making postings on a website named Verbalabuse.com. In her numerous postings, Alexander discussed leaving Rogers and gave and received advice on a number of topics, including protective orders and the effect of a finding of abuse on custody determinations. Alexander also discussed verbal and physical abuse she alleged had occurred throughout her life from a number of different individuals. Alexander claimed the physical abuse by Rogers continued in March 2002 when he punched her in the arm and, on another occasion, pushed her against the wall. On April 9, 2002, Alexander claimed, Rogers grabbed her by the neck, pushed her against a wall, threw her on the bed, and slapped her in the stomach. On April 10, 2002, Alexander claimed, Rogers pulled her head down by her hair and pushed her into a kitchen counter. Alexander alleges the final assault injured her neck and left bruises on her hip. Alexander has no photographs of any injuries from the alleged assault. Rogers denies physically assaulting Alexander. On April 12, 2002, Alexander took the children and a handgun and went to a women’s shelter. On April 19, 2002, she filed criminal charges against Rogers based on the alleged April 10, 2002, assault. She saw a doctor the same day about the claimed injury to her neck. Alexander’s x-ray was negative, and she declined further medical tests. Rogers was subsequently arrested on assault charges. Alexander filed for a protective order from Rogers. Rogers then filed for divorce, seeking access to the children. At a hearing on May 1, 2002, an associate judge granted the protective order, finding Rogers had committed family violence. Rogers had no contact with the children from the time Alexander left the marriage until the protective order was signed on May 30, 2002. Beginning in June 2002, Rogers had supervised visitation with the children. Rogers did not have unsupervised visitation with the children until the end of 2002. In August 2002 and January 2003, Alexander filed criminal charges against Rogers based on alleged violations of the protective order. Police arrested Rogers on the January 2003 charges after Alexander delayed him at the children’s day care until the police arrived. Alexander also filed at least two complaints with the Texas Department of Family and Protective Services, claiming Rogers had abused or neglected the children. Finally, Alexander contacted the Richardson Police Department, alleging Rogers was repeatedly driving in front of her house. Rogers was found not guilty of violating the protective order in January 2003. None of Alexander’s other charges were substantiated. After leaving the marriage, Alexander sought counseling with Sandy Gaylord, a domestic violence counselor, claiming verbal, emotional, physical and sexual abuse by Rogers. Gaylord diagnosed Alexander with posttraumatic stress disorder (PTSD). Although Gaylord never met Rogers, she believed Rogers had abused Alexander. Her opinions were based on what Alexander told Gaylord, the way Alexander told her story, Gaylord’s experience and Gaylord’s observations throughout her years of counseling. The trial court ordered a social study of both Rogers and Alexander by Dr. Catherine Collins. Although Collins concluded neither Alexander nor Rogers had “significant inadequacies” as parents, she noted Rogers had criticized Alexander in front of the children and Alexander had “made negative reports about [Rogers] to multiple agencies.” According to Collins, the documents submitted by Alexander did not strongly support Alexander’s allegations. The trial court also ordered the parties to undergo a psychological evaluation with Dr. Tim Branaman. Alexander refused to attend the initial meeting, claiming she was afraid to be in the same room as Rogers. Alexander subsequently agreed to the meeting with Gaylord in attendance. Branaman noticed no signs of Alexander being afraid of Rogers during the meeting. Moreover, his testing of Alexander did not indicate she had PTSD. He also noted Alexander failed to describe to him the past abuse by other individuals that she described to her therapist. Finally, Alexander’s description of the abuse by Rogers had magnified over time. In Branaman’s opinion, Alexander’s inconsistencies affected her credibility. The jury found Rogers should be sole managing conservator and Alexander should be possessory conservator. The trial court entered a final divorce decree, adopting the jury’s findings. HOLDING:Affirmed. On appeal, Alexander asserted in two issues that legally and factually insufficient evidence supported the jury’s finding Rogers should be appointed sole managing conservator, because she presented credible evidence of a history or pattern of physical abuse by Rogers against a spouse and Rogers failed to rebut the statutory presumption in Texas Family Code �153.004(b) that naming him sole managing conservator was not in the best interest of the children. Section 153.004 applies to a conservatorship decision when there is a history of physical abuse within the family. Specifically, as applicable to Alexander’s arguments in this case, the fact finder, in making a decision regarding the conservatorship of a child, is required to consider credible evidence of the intentional use of abusive physical force by a party against the party’s spouse. When determining if such credible evidence has been presented, the fact finder must consider evidence that, within the two-year period preceding the filing of the suit or during the pendency of the suit, a protective order was entered against the parent or the parent intentionally used abusive physical force against the parent’s spouse. If there is credible evidence of a history or pattern of past or present physical abuse by one parent against a spouse, �153.004(b) establishes a rebuttable presumption that the appointment of the abusive parent as sole managing conservator of a child is not in the best interest of the child. Both issues, the court stated, hinged on whether there was credible evidence of a history or pattern of physical abuse by Rogers against a spouse. Alexander offered the affidavit of Branette Shelby, Rogers’ first wife, in which Shelby stated Rogers pulled her hair, kicked her, slapped her and pushed her down. In 1994, Rogers was arrested and charged with a Class C misdemeanor as a result of one such incident. Shelby did not pursue the charges, and the couple subsequently divorced in 1995. Shelby told Branaman she was still afraid of being harassed by Rogers. Branaman concluded Rogers “appears to minimize” the extent of his physical abusiveness in his first marriage. Rogers did not admit to all the conduct alleged by Shelby but admitted he shoved Shelby several times. He asserted the incidents revolved around Shelby’s infidelity and giving him a sexually transmitted disease. He stated that after their divorce, he and Shelby remained friendly and went to dinner several times. One incident of physical violence can constitute a history of physical abuse. Accordingly, the court found that Rogers’ admitted shoving of Shelby could support a finding of a history of physical abuse by Rogers against a spouse. But the court also found that the jury could consider Rogers’ explanation for the conduct and the amount of time that had passed since the conduct in determining the weight to be given to the evidence. Alexander, the court noted, testified she was the victim of physical abuse by Rogers in March 2001, March 2002 and April 2002. Rogers denied he physically abused Alexander during their marriage. No evidence documented Alexander’s claimed injuries, the court stated. Alexander’s inconsistent statements, the court stated, regarding past abuse by other individuals and the extent of physical abuse by Rogers raised questions about her credibility and possible motivations. The jury could have viewed Alexander’s Internet postings, which displayed Alexander’s significant grasp of family law along with myriad complaints of physical and sexual abuse throughout her life, as evidence Alexander was attempting to manufacture an abuse case against Rogers in order to obtain custody of the children. Finally, Alexander relies heavily on the protective order entered by the associate judge in May 2002 that found Rogers had committed family violence. But the court stated that the jury could consider all of the evidence in determining the weight to be given to the entry of the protective order. Gaylord, the court noted, identified herself as Alexander’s advocate. Accordingly, Gaylord’s opinions were subject to the same credibility issues as Alexander’s testimony. As the sole judge of the weight and credibility of the evidence, the court stated, the jury could choose to reject Alexander’s version of events and could reasonably conclude Alexander failed to establish a history or pattern of physical abuse by Rogers against a spouse. Without credible evidence of a history or pattern of physical abuse by Rogers against a spouse, �153.004(b) did not prohibit the appointment of Rogers as sole managing conservator of the children. OPINION:Thomas, C.J.; Thomas, C.J., and Francis and Lang-Miers, JJ.

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