Roger Alan Stevens v. Sheryl Lee Stevens
Roger Alan Stevens v. Sheryl Lee Stevens
Opinion
When it appoints joint managing conservators, a court must either establish the county of the children's residence or designate the conservator who has the exclusive right to determine the children's primary residence. Id. Roger argues that the court erred in designating Sheryl rather than him as the conservator with this right. The court's paramount consideration in determining which conservator should determine the children's residence is the best interest of the children. Id. § 153.002 (West 1996); Dennis v. Smith, 962 S.W.2d 67, 68 (Tex. App.--Houston [1st Dist.] 1997, pet. denied). In choosing the conservator who will determine the children's residence, a fact-intensive decision, the court is invested with broad discretion. Dennis, 962 S.W.2d at 68; see Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). With respect to the resolution of factual issues, the reviewing court cannot substitute its judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). If the trial court bases its decision on conflicting evidence, and some evidence supports the decision, the court does not abuse its discretion. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998); Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). In other words, to successfully challenge the district court's ruling in this case, Roger must establish that the court could reasonably have reached but one decision. Walker, 827 S.W.2d at 840. Even if this Court would have decided the issue differently, we cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. Id. We accordingly confine our review to the evidence supporting the district court's decision.
Although the case was tried to the court, neither party requested the court to make findings of fact, and none were made. See Tex. R. Civ. P. 296. On appeal, we presume that the court found every fact necessary to support its decision that Sheryl should determine the boys' residence, and we will uphold that determination on any legal theory supported by the record. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
The evidence shows that Roger and Sheryl married on March 18, 1993, and separated on January 19, 1998. Two sons were born during the marriage. Between the time of their separation and their divorce, Roger and Sheryl agreed on temporary orders, pursuant to which each was named a temporary joint managing conservator; Sheryl was given the exclusive right to establish the boys' legal residence and domicile as long as she resided with the boys in Tom Green County. Since their separation, Sheryl has begun working as the manager of a car rental agency in Midland; she works normal business hours during the week and earns an annual salary of $23,500 plus a monthly commission. She has arranged for the boys to attend St. Luke's Child Development Program in Midland while she works. Although Sheryl was attending school and working two jobs for several years during the marriage, Sheryl testified that she and Roger shared child-raising responsibilities. When they separated, Sheryl and the boys moved into her sister's apartment. Because Roger had put the boys' beds in storage, Sheryl slept on the couch while the boys slept in her bed. Several witnesses testified that Sheryl is a good mother, that she has a good relationship with the boys, and that she is affectionate toward them. From these witnesses' observations, Sheryl disciplines the boys appropriately; according to one friend, the boys are well behaved when she sees them in public.
The record contains evidence showing Roger to be temperamental. When Sheryl told him that she was seeking a divorce, for instance, Roger drove to her place of work, yelled vulgarities at her from the parking lot, threatened to beat her up, and dumped her clothes on the roof and hood of her car. Their frequent arguments while married resulted at times in shoving matches. Sheryl testified that many times Roger slapped her and called her names in the older boy's presence, upsetting him and making him cry. Although Sheryl described Roger's relationship with the boys as good most of the time, she stated that when he got angry at them, he tended to yell. During some of these times, Roger would upset the older boy by calling him derogatory names.
Some evidence also exists that Roger does not always put the boys' interests before his own. When Sheryl announced her intent to divorce Roger and the two separated, Roger moved out of their apartment and put the boys' clothing, toys, and beds in storage. Although Sheryl had none of these items, lacked the money to buy new ones, and asked Roger more than once to bring her some of them, Roger brought her only a few clothes and toys for the boys. According to the sister with whom Sheryl lived just after the separation, Sheryl did not have sufficient socks or underwear for the boys even though there were plenty of clothes for them in storage. After the agreed temporary orders were rendered, Roger divided the clothes, toys, and furniture except for the boys' beds, which remained in storage. One evening shortly after they separated, Sheryl was alone with the boys in an apartment when Roger arrived and began to bang on the door and yell at her. As Sheryl opened the door, Roger continued yelling and calling her names, then took the younger boy from the apartment. He could not take the other boy because Sheryl was holding onto him. The boy was crying and saying that he didn't want to go. After the police came to the apartment, Roger telephoned and continued to yell at her on the phone, telling Sheryl that he had a violent temper.
The evidence need not be compelling or conclusive to support the trial court's exercise of discretion. While we have only a cold record from which to examine the proceedings, the trial court is able to directly observe the actions and demeanor of the participants. We therefore accord the trial court great latitude in judging credibility and concern for the boys' best interests. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The admitted conflicts in the evidence here must be resolved by the trial court, who may choose to believe one witness and disbelieve others. Id. We cannot substitute our judgment for that of the trial court simply because other evidence would support a different conclusion. Barber, 982 S.W.2d at 366; Walker, 827 S.W.2d at 840.
Our review of the record shows that sufficient evidence exists to support the district court's decision that Sheryl should determine the boys' primary residence. We therefore overrule Roger's issue and affirm the court's decree.
Lee Yeakel, Justice
Before Justices Jones, B. A. Smith and Yeakel
Affirmed
Filed: August 26, 1999
Do Not Publish
on January 19, 1998. Two sons were born during the marriage. Between the time of their separation and their divorce, Roger and Sheryl agreed on temporary orders, pursuant to which each was named a temporary joint managing conservator; Sheryl was given the exclusive right to establish the boys' legal residence and domicile as long as she resided with the boys in Tom Green County. Since their separation, Sheryl has begun working as the manager of a car rental agency in Midland; she works normal business hours during the week and earns an annual salary of $23,500 plus a monthly commission. She has arranged for the boys to attend St. Luke's Child Development Program
Case-law data current through December 31, 2025. Source: CourtListener bulk data.