                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00088-CV
         ______________________________


      IN THE MATTER OF THE MARRIAGE OF
ALEJA A. CAMPBELL AND JOSHUA GENE CAMPBELL
AND IN THE INTEREST OF ADAM DANTE CAMPBELL,
   ANDREW MICHAEL CAMPBELL, AND ETHAN
        NATHANIEL CAMPBELL, CHILDREN




    On Appeal from the 354th Judicial District Court
                 Hunt County, Texas
                Trial Court No. 71,585




      Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION

       Aleja A. Campbell appeals a trial court's grant of her petition for divorce from Joshua Gene

Campbell. As requested by both parties, the trial court awarded Aleja and Joshua joint managing

conservatorship of their three children. Aleja now appeals the order on the sole ground that the trial

court erred when it allowed Joshua's mother, Carolyn Campbell, to exercise Joshua's visitation rights

while he was incarcerated. We find the trial court abused its discretion in granting visitation to a

nonparty in the absence of evidence demonstrating the children's denial of access to Carolyn would

significantly impair their emotional well-being. Accordingly, we reverse the trial court's order of

grandparent access to Carolyn and render judgment denying Carolyn court-ordered access and

possession of the children.

I.     Procedural Background

       Aleja filed a petition for divorce asking that she and Joshua "be appointed joint managing

conservators." She consented to a temporary order appointing both parties as joint managing

conservators and set up a visitation schedule. Because Joshua was incarcerated in federal prison, he

granted his mother power of attorney "to act for [him] and stand in [his] stead" with respect to the

divorce proceedings. Carolyn did not file any petition or intervention in the suit. Joshua's deposition

on written questions requested the court to allow his mother to exercise his periods of possession

until his release from custody.




                                                  2
       Aleja testified in the following manner at trial on direct examination:

               Q.      You don't have any problem with his mother, who is here today,
       taking the children to see him up in Oklahoma one weekend a month; is that correct?

               A.      No, I don't.

Prior to Joshua's incarceration, Carolyn and Joshua lived together. The children would split their

time equally between Carolyn and Joshua's home and Aleja's home. During cross-examination,

Aleja agreed that the children had "a close relationship" and a "very strong bond" with Carolyn.

Although Aleja further stated:

              Q.      Would you have any objection to her exercising a visitation schedule
       that was similar to a standard possession schedule in the place of her son, your
       husband, until such time as he is released from federal prison?

               A.      I don't have a problem with that, you know.

               Q.      Okay.

             A.     She can see them more times than once a week, you know, once a
       month or whatever.

               Q.      Okay.

               A.      I don't have a problem with that.

               Q.      So you don't have any problem with a standard possession order and
       letting her exercise it, with you having custody?

                 A.   But I don't want that. You know, I just said I want once a month and
       that's it. On my own, I'm willing -- I'm willing to let her see the kids more than that.

               Q.      Have you been letting her see the kids the last couple of months?



                                                  3
                A.      The last few months actually she's seen them. I took the boys over
        there in -- I don't remember exactly when, sometime last month, I think, they went
        over there.

                Q.      Have you been letting her call them and contact them and talk with
        them?

                A.      I don't have a phone, so --

        Carolyn also testified at trial, stating she had assisted in raising the children for "all of their

lives" and that the children's rooms were as they had always been in Joshua's home. Carolyn claimed

that, since Joshua went to prison,1 she was only able to see the children "here and there." She

claimed, "I haven't been able to talk to them or see them for birthdays or nothing like that." Carolyn

stated that it was important for the children to be exposed to their father's side of the family and that

it was in their best interest for them to spend quality time with the paternal family in their old home.

        At the conclusion of the trial, the trial court awarded Joshua's mother possession or access

to the children:

        The Court is going to grant the divorce, appoint the parties as joint managing
        conservators with primary possession with the petitioner, mother.

                ....

                As to the requests by the paternal grandmother for some access, the Court will
        -- I'm not going to give a straight standard possession order. However, I will give
        from 6:00 p.m. Friday to 6:00 p.m. Sunday on the first and third Fridays unless
        preempted by holidays and specifically at Christmas from noon December 26th to
        noon December 29th.

        1
        Joshua's answers to a deposition on written questions indicates he received a fifty-month
sentence in federal prison with an expected release date of November 2010.

                                                    4
                 ....

          [A]fter his incarceration, Mr. Campbell will have a standard possession order.

          The final divorce decree appointed Aleja and Joshua joint managing conservators, set a

visitation schedule, and further ordered "for so long as JOSHUA GENE CAMPBELL remains

incarcerated . . . he shall have possession of and access to the children exercised by his mother,

CAROLYN CAMPBELL."2

          On appeal, Aleja contends the trial court erred in awarding Carolyn possession or access to

the children because Carolyn failed to file formal pleadings and there was no evidence contesting

the parental presumption "that a parent acts in the best interest of the parent's child," such that the

trial court could award grandparent access under Section 153.433 of the Texas Family Code.3 Aleja

also argues the trial court's order circumvented the principles of Troxel v. Granville, 530 U.S. 57

(2000).




          2
        Carolyn argues she is merely exercising her son's right of visitation, but she cites no
authority that would allow one person to exercise the visitation right of another. We construe the
substance of the decree to grant Carolyn possession and access to the children at designated times.
The decree further grants Joshua a standard possession order on his release from incarceration.
          3
        Due to the fact that the court set a visitation schedule and granted "Possession and Access,"
to be exercised by Carolyn, we reject the notion that this case can be decided based on Section
153.316(6) of the Texas Family Code, which allows either parent to designate a competent adult to
pick up and return the child. See TEX . FAM . CODE ANN . § 153.316(6) (Vernon 2008).

                                                   5
II.    Standard of Review

       An abuse of discretion standard applies to a trial court's determination of grandparent access

or possession under Section 153.433 of the Texas Family Code. In re J.P.C., 261 S.W.3d 334,

335–36 (Tex. App.—Fort Worth 2008, no pet.); see TEX . FAM . CODE ANN . § 153.433 (Vernon

2008). Although Section 153.433 "does not specifically include a best interest analysis, section

153.002 dictates that the best interests of the child shall always be the primary consideration" when

determining conservatorship, possession, and access issues. J.P.C., 261 S.W.3d at 336; see TEX .

FAM . CODE ANN . § 153.002 (Vernon 2008). A trial court is given "wide latitude in determining the

best interests of a minor child." Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex. App.—Dallas

2006, no pet.) (quoting Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). Because the trial

court is in a position to analyze the facts, we are without power to reverse the judgment unless we

find that the record as a whole demonstrates the trial court abused its discretion. Id.; In re Marriage

of Edwards, 79 S.W.3d 88, 98 (Tex. App.—Texarkana 2002, no pet.); Halamka v. Halamka, 799

S.W.2d 351 (Tex. App.—Texarkana 1990, no writ).

       Abuse of discretion does not occur if some evidence of substantive and probative character

exists to support the trial court's decision. J.P.C., 261 S.W.3d at 336. However, because a trial court

has no discretion in determining what the law is or applying the law to the facts, discretion is abused




                                                  6
when it grants access to a grandparent who fails to meet the statutory requirements of Section

153.433. Id.; In re B.N.S., 247 S.W.3d 807, 808 (Tex. App.—Dallas 2008, no pet.).4

III.    The Trial Court Erred in Applying the Statutory Requirements of Section 153.433 of
        the Texas Family Code

        A.         The History and Limitations of the Grandparent Access Statute

        Aleja argues the trial court circumvented the principles espoused in Troxel. This United

States Supreme Court case held unconstitutional a "breathtakingly broad" Washington statute that

allowed "any person" to petition for visitation with children "at any time" because it infringed on a

parent's right to make decisions concerning the care, custody, and control of their children. 530 U.S.

57, 60 & 67 (reversing order of grandparent visitation); Lilley v. Lilley, 43 S.W.3d 703, 711 (Tex.

App.—Austin 2001, no pet.).

        The United States Supreme Court discussed issues such as the "slender findings" made by

the trial court in its determination that visitation was in the best interests of the children, and further

stated in dicta:

        [W]e do not consider the primary constitutional question passed on by the
        Washington Supreme Court—whether the Due Process Clause requires all
        nonparental visitation statutes to include a showing of harm or potential harm to the

        4
         We point out that findings of fact and conclusions of law were not requested or filed. In
such situations, "the judgment of the trial court implies all necessary findings to support it, provided
the proposition is raised in the pleadings, supported by evidence, and the trial judge's theory is
consistent with the evidence and the applicable law." Casas v. Adriano, No. 13-06-373-CV, 2007
WL 1941422, at *2 (Tex. App.—Corpus Christi July 5, 2007, no pet.) (mem. op., not designated for
publication) (quoting Schoeffler v. Denton, 813 S.W.2d 742, 744 (Tex. App.—Houston [14th Dist.]
1991, no writ)).

                                                    7
       child as a condition precedent to granting visitation. We do not, and need not, define
       today the precise scope of the parental due process right in the visitation context.

Troxel, 530 U.S. at 73.

       In October 2004, Attorney General Greg Abbott issued an opinion addressing the

constitutionality of the prior Texas grandparent access statute following the Troxel decision. Op.

Tex. Att'y Gen. No. GA-0260 (2004). He concluded that, while the prior grandparent access statute

could be applied constitutionally, it could only be applied in light of the limitations imposed by

Troxel. Id. To meet the constitutional standard, a court would have to require a grandparent to

overcome the presumption that a parent acts in the best interest of his or her child by proving by a

preponderance of the evidence that the parent is not fit or that denial of grandparent access

significantly would impair the child's well-being. House Research Organization, Bill Analysis, Tex.

H.B. 261, 79th Leg., R.S. (2005).

       As a consequence of the Attorney General's opinion, Section 153.433 of the Texas Family

Code was amended to allow reasonable possession of or access to a grandchild only if:

               (1)     at the time the relief is requested, at least one biological or adoptive
       parent of the child has not had that parent's parental rights terminated;

               (2)    the grandparent requesting possession of or access to the child
       overcomes the presumption that a parent acts in the best interest of the parent's child
       by proving by a preponderance of the evidence that denial of possession of or access
       to the child would significantly impair the child's physical health or emotional well-
       being; and

               (3)    the grandparent requesting possession of or access to the child is a
       parent of a parent of the child and that parent of the child:


                                                  8
                         (A)     has been incarcerated in jail or prison during the three-month
                  period preceding the filing of the petition.

TEX . FAM . CODE ANN . § 153.433 (emphasis added).

        The new statutory requirements removed Section 153.433 from the "breathtakingly

overbroad" category, and distinguished it from Troxel, thereby allowing our sister courts to hold the

statute constitutionally sound. In re B.R.S., 166 S.W.3d 373, 374 (Tex. App.—Waco 2005, no pet.);

In re C.P.J.,129 S.W.3d 573, 576–77 (Tex. App.—Dallas 2003, pet. denied); In re Pensom, 126

S.W.3d 251, 254 (Tex. App.—San Antonio 2003, no pet.); Lilley v. Lilley, 43 S.W.3d 703, 710–11

(Tex. App.—Austin 2001, no pet.). We analyze this case in accordance with the requirements set

forth in Section 153.433 to determine whether the trial court erred in awarding Carolyn access to the

three children.

        B.        There Was No Evidence That Significant Impairment to Children's Emotional
                  Well-Being Would Result If Carolyn Was Not Granted Court-Ordered Access

        In 2005, the Legislature "set a high threshold for a grandparent to overcome the presumption

that a fit parent acts in his children's best interest:" Carolyn was required to prove that denial of

access would significantly impair the children's physical health or emotional well-being. See In re

Derzapf, 219 S.W.3d 327, 333 (Tex. 2007); see also TEX . FAM . CODE ANN . § 153.433(2).5 As

amended, Section 153.433 recognizes "so long as a parent adequately cares for his or her children

(i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the

        5
         Aleja does not contest any requirement under subsections (1) or (3) of Section 153.433.
Further, there is no evidence regarding the children's physical health.

                                                     9
family." Derzapf, 219 S.W.3d at 333 (quoting In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex.

2006)).6

       Here, the court determined that it would be in the best interest of the children to award both

parents joint managing conservatorship, presumably because both parents were fit. During trial, the

court learned that the children were spending equal amounts of time between Aleja and Joshua and

Carolyn and that the children had their own room with their belongings at Joshua and Carolyn's

home. Aleja admitted to the close relationship and strong bond the children had with Carolyn.

Although Aleja stated she did not "have a problem with" Carolyn visiting the children, she did not

wish the court to order grandparent access. Also, there was some evidence that Aleja had restricted

Carolyn's access to the children.

       From these facts, while the trial court could have agreed with Carolyn that it would benefit

the children to be exposed to Carolyn, there was no evidence that the parental presumption was

overcome by proof that denying court-ordered access would significantly impair the children's well-

being. See id. at 333–34; J.P.C., 261 S.W.3d at 337–38 (court was "unpersuaded" by grandparents'

arguments that they should be allowed access because of their significant and lengthy past contact

with child in their home, testimony that child's behavior was different after restricted access, and

assertions that child was longing to see grandparents); In re J.R.D., No. 05-06-01554-CV, 2007 WL



       6
        This principle assumes that parents will encourage their children's visits and contacts with
loving grandparents, making it unnecessary for the State (by judicial order) to intervene. Here, Aleja
has acknowledged the importance of the children maintaining a close bond with Carolyn.

                                                 10
4415879, at *1 (Tex. App.—Dallas Dec. 19, 2007, no pet.) (mem. op., not designated for

publication) (mother's testimony that it was "important to her child's growth and emotional health

to have a relationship with his grandparents" was considered no evidence that denial of access would

significantly impair child's health or well-being). In fact, the record is devoid of any testimony

regarding the children's emotional well-being in general. An opinion that it would be beneficial for

the children to spend quality time with Carolyn is not sufficient to satisfy the grandparent access

statutory requirements. Since there was no evidence of significant impairment to the children's

emotional well-being, the trial court erred in ordering Carolyn the right to exercise Joshua's

visitation.

        C.     Carolyn Was Required to Intervene or File Formal Pleadings on Her Behalf

        Aleja also argues that, since no formal pleadings were filed by Carolyn, the trial court erred

in awarding her possession and access to the children. Joshua's response focuses on the doctrine of

trial by consent. Unpleaded claims or defenses that are tried by express or implied consent of the

parties are treated as if they had been raised by the pleadings. Roark v. Stallworth Oil & Gas, Inc.,

813 S.W.2d 492, 495 (Tex. 1991). The party who allows an issue to be tried by consent and who

fails to raise the lack of a pleading before submission of the case cannot later raise the pleading

deficiency for the first time on appeal. Id. In the proper instance, the issue of grandparent access

can be tried by consent, and technical rules of practice and pleadings are of little importance in

determining issues concerning the custody of children. See In re W.M., 172 S.W.3d 718, 728 (Tex.



                                                 11
App.—Fort Worth 2005, no pet.) (grandparents did not specifically plead for grandparent access, but

issue was tried by consent where grandparents had intervened in action and attorney's statements in

court emphasized intent to try issue).7 But here, a more basic problem appears; Carolyn was not a

party to this matter; she neither filed her own petition, nor was she named as a third party. The

Texas Family Code delineates the manner in which to bring such an action.

       Section 153.432 of the Texas Family Code sets forth the method by which grandparents may

gain access to or possession to children. TEX . FAM . CODE ANN . § 153.432 (Vernon 2008). Carolyn

could have intervened if she had met the statutory requisites for standing as set forth in Section

102.004. See TEX . FAM . CODE ANN . § 102.004 (Vernon 2008). In this case, there was no attempt

to satisfy the statutory requirements for grandparent intervention; thus, Carolyn's request for

grandparent access was not before the trial court. A judgment may not be granted in favor of a

nonparty who has not intervened. Exito Electronics Co. v. Treja, 166 S.W.3d 839, 852 (Tex.

App.—Corpus Christi 2005, no pet.) (citing Fuqua v. Taylor, 683 S.W.2d 735, 738 (Tex.

App.—Dallas 1984, writ ref'd n.r.e)); Landry v. Nauls, 831 S.W.2d 603, 605 (Tex. App.—Houston

[14th Dist.] 1992, no writ).

       While Aleja seeks reversal of the entire divorce decree, Section 44.1(b) of the Texas Rules

of Appellate Procedure allows us to reverse only the award of grandparent access. See TEX . R. APP .

P. 44.1(b).




       7
        Since Carolyn had been granted a power of attorney by her incarcerated son, it was
represented that she was appearing at the divorce hearing on her son's behalf.

                                                12
IV.    Conclusion

       For the reasons stated above, we hold that the trial court abused its discretion in awarding

the grandmother access to and possession of the children. Accordingly, we reverse that portion of

the trial court's judgment and render judgment denying Carolyn court-ordered access and possession

of the children.



                                             Jack Carter
                                             Justice

Date Submitted:       February 24, 2009
Date Decided:         February 27, 2009




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