Opinions, April 19-21, 2016: Primary Residence & Witchcraft

On both Tuesday and Thursday of this week, the Fourteenth Court of Appeals issued a memorandum opinion concerning determination of the primary residences of children, though the Thursday case has some strange facts.

On April 19, 2016, the Court released its memorandum opinion in Jacobs v. Alt, No. 14-15-00028-CV. In this case, the father argued the trial court erred in: 1) granting primary to the mother; and 2) excluding two pieces of evidence.

Mother filed a petition to adjudicate parentage as to the couple’s daughter. The father admitted paternity in his answer. He did not appear at trial and the trial court rendered a final order regarding conservatorship and possession and access (the “First Order”).

The father then filed a bill of review claiming he did not receive notice of the trial. The trial court set aside the First Order but did not set aside Temporary Orders that had been previously signed.

The mother’s brother was a registered sex offender. The father obtained a TRO and injunctive relief prohibiting the uncle from coming within 500 feet of the daughter. The daughter later told the father she had been in the uncle’s presence and then told CPS the same. The trial court entered temporary orders giving the father exclusive right to designate the daughter’s primary residence, ordered that the daughter be interviewed at the Child Advocacy Center, and that the child continue counseling. During the CAC interview, the daughter did not indicate that she had been sexually abused. Daughter’s counselor testified: 1) that she did not believe that the child had been around the uncle; 2) the child wanted to live with the mother; and 3) that granting the father exclusive rights was harmful to the child.

The trial court signed a final order granting the mother exclusive rights to designate the child’s primary residence, which the father appealed.

On appeal, two of father’s issues concern the purported exclusion of evidence. The first concerned a recording father made of a conversation between the mother and daughter which he said indicated the child was coached. The trial court excluded the evidence because it violated wiretap laws. Because the father did not make an offer of proof, his error was not preserved. The second evidence concerned mother’s objections to testimony from father’s medical expert. There were no specific rulings made by the trial court, however, which could give rise to a challenge on appeal.

Finally, the father argued that the trial court erred in designating the mother as primary when the evidence showed, he argued, that the mother allowed the child around the uncle, the mother struck the daughter, and that the mother drank excessive amounts of alcohol.

There was a lot of back and forth about the child’s representations concerning being in the uncle’s presence as there was the CAC interview, the court-ordered counseling, and the father had taken the child to another counselor. Ultimately, the trial court concluded the child had been around the uncle on one occasion but the mother had successfully kept the child away from him. The mother testified she drank one to two glasses of “watered-down wine” four nights per week. She also testified that she slapped the child in public on one occasion over a year before trial when the child cursed.

The evidence also showed that the father engaged in domestic violence while he had the daughter, that he hired a private investigator to search the mother’s trash, and that he was arrested for DWI shortly after completing rehab for alcohol addiction. There was also evidence the father was less willing to share in rights and duties of parenting.

The Court of Appeals found that while the mother did not always make the best parenting decisions, the father made destructive choices. The order was affirmed.

On April 21, 2016, the Court released its memorandum opinion in Chavez v. Chavez, No. 14-14-00481-CV, which also included a challenge to the property division in addition to the primary residence determination.

Lucidalia Chavez and Walter Chavez had two children during their marriage. In her petition for divorce, Lucidalia requested the trial court designate her as SMC and primary. After a bench trial, the trial court heard evidence showing: Lucidalia was the primary caregiver of the children, while Walter worked two jobs; Lucidalia had a relationship with another man for six years; when Walter heard this, he left the marital home and had a relationship with another woman which resulted in the other woman becoming pregnant; Lucidalia and Walter reconciled and resumed living together, with the father also supporting his out-of-wedlock child.

Lucidalia testified that she should be appointed primary because the father worked all the time, was verbally abusive, and hit the children with a belt. Walter testified that Lucidalia drove with the children in the car after drinking, she drinks around the children at home, and she brings men over to the house. Walter also elicited testimony regarding Lucidalia’s immigration status, her inability to speak English, lack of a Texas drivers’ license, and lack of Social Security number. Evidence was also introduced that Lucidalia attempted to marry her cousin. Walter testified that he had a legal immigration status, that he speaks English, and has a valid driver’s license and Social Security Number. Also, he testified that he owned a roofing company where he worked during the day and was a bartender in the evenings, but if he was named primary, he would quit his bartending job and have his mother help care for the children.

The trial court granted the divorce and named Walter as primary.

On appeal, Lucidalia asserted the evidence was legally and factually insufficient to support the trial court’s decision to name Walter primary. The court of appeals then reviewed the negative evidence against both parents in the record. The balance of the negative evidence is definitely against Lucidalia, including evidence of her alcohol abuse, driving the children while intoxicated, bringing men into her home in front of the children, including one occasion when she allowed a man to sleep in the bed with her and her son (which Lucidalia admitted had a negative effect on her son and “harmed his development”).

The most damning evidence is that Lucidalia asked witnesses to fabricate affairs with Walter and then testify to the fabricated affairs and that Lucidalia “spread ashes in front of Walter’s business in an attempt to use witchcraft to harm him.”

The Court of Appeals found that the evidence was sufficient to support the trial court’s determination Walter should be primary. Given the rulings against her in the trial court and now the court of appeals, she may want to double check her spells.

Lucidalia also challenged the admission of evidence relating to her immigration status, nationality, and ethnicity and that she attempted to marry her cousin. During trial, Lucidalia objected to the relevance of this evidence but on appeal, she alleged it was prejudicial. Because she did not object to the evidence as prejudicial in the trial court, she did not preserve error on the issue for appeal.

Lucidalia asserted the trial court erred in awarding a disproportionate amount of the community property to Walter. The Court of Appeals found that the trial court awarded Lucidalia a greater share of the community estate and split the liabilities. She also challenged the valuation of Walter’s roofing business, but the record did not contain any evidence in support of her own valuation. The Court of Appeals found her other specific challenges to the division lacked merit and affirmed the division.



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