Opinions, August 25, 2015

The Fourteenth Court of Appeals released its published opinion in Allen v. Allen, No. 14-14-00426-CV (Tex.App.–Houston [14th Dist.] Aug. 25, 2015) this morning, affirming the trial court’s designation of father Joshua Allen as the parent with the exclusive right to determine the primary residence of the two children of the marriage.

Jessica and Joshua married in 2007 and separated in August 2012. Jessica and the two children moved in with her mother. On August 6, 2012, the parties signed an agreement under which Jessica would have primary conservatorship of the children and Joshua would not be obligated to pay child support. Jessica filed for divorce in December 2012; Joshua counterpetitioned. Agreed temporary orders were entered in January 2013 providing for joint managing conservatorhsip of the children, designating Jessica as the conservator with the right to determine the children’s primary residence and requiring Joshua to pay child support.

Final trial was held in December 2013 which resulted in a decree in which the trial court named both parents as JMCs, awarded Joshua the right to determine the children’s primary residence and ordered Jessica to pay child support. At trial, Joshua was represented by counsel, Jessica appeared pro se, and a GAL represented the interests of the children.

At trial, Joshua testified to several instances of Jessica impeding his access to the children. Additionally, Jessica made several reports to CPS of sexual or physical abuse of one of the children while in Joshua’s custody. One CPS investigator testified that she investigated the reports and ruled out any abuse and, further, both parents’ residences were appropriate places for the children to live. A second CPS investigator testified she investigated two allegations of sexual abuse and one allegation of negligent supervision but the results of the investigation were inconclusive.

Joshua testified that he was concerned Jessica would continue to interfere with his possession if the children continued to live with her, based on her past conduct. The GAL testified she believed both parents were capable of taking care of the children but was concerned that Jessica was “a big wedge” between Joshua and the children and seemed intent on continuing her feud with him.

Jessica’s sole issue on appeal is her allegation the trial court abused its discretion in granting Joshua the right to establish the children’s primary residence. In support, she argued that she had primary custody of the children before the entry of the final decree, that Joshua signed the pre-suit agreement giving her that right, and that she reported abuse to the authorities. Regarding the pre-suit agreement, the Court of Appeals noted that parties to a divorce proceeding may enter a written agreement concerning conservatorship and possession of a child but one parent may revoke agreement before the trial court enters its final orders. And when one party revokes consent, the prior agreement on its own is no longer a proper basis for such orders. Additionally, even if Joshua had not withdrawn his consent, the trial court was not bound to follow the agreement unless to do so would be in the children’s best interest.

At the conclusion of trial, the trial judge emphasized that Jessica’s alienating behavior caused the court to wonder if Jessica would ever allow Joshua to have a good relationship with him. Because there was evidence to support the trial court’s determination that designating Joshua as primary was in the children’s best interest, the trial court did not abuse its discretion.

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