                                      NO. 07-02-0317-CV

                                   IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                          PANEL C

                                      FEBRUARY 21, 2003

                            ______________________________


                       IN THE MATTER OF THE MARRIAGE OF
                   CRYSTAL DAWN BLACK AND ERIC ZANE BLACK
               AND IN THE INTEREST OF ALYSSA PAIGE BLACK, A CHILD

                          _________________________________

            FROM THE 316TH DISTRICT COURT OF HUTCHINSON COUNTY;

                  NO. 34,458; HONORABLE H. BRYAN POFF, JR., JUDGE

                           _______________________________


Before JOHNSON, C.J. and QUINN and REAVIS, JJ.


                                    MEMORANDUM OPINION1


       Appellant Crystal Dawn Black, mother of Alyssa Paige Black, a minor child,

challenges that portion of a final decree of divorce upon a non-jury trial which, among other

things, awarded Phil Black and Rose Black, the paternal grandparents, rights of limited

access to Alyssa. By two issues, Crystal contends based upon Troxel v. Granville, 530


       1
           Tex. R. App. P. 47.1.
U.S. 57, 120 S.Ct. 2054, 147 L.Ed. 2d 49 (2000) that (1) section 153.433 of the Texas

Family Code is unconstitutional, and (2) the trial court abused its discretion in granting

access to the paternal grandparents. Based upon the rationale expressed herein, we

affirm.


          Appellant does not challenge the findings of fact of the trial court; thus, only a brief

review of the underlying proceedings is necessary. Alyssa Paige Black was born of the

marriage of Crystal and Eric Zane Black on April 8, 1998. Crystal filed her original petition

for divorce on January 11, 2001, and after filing her first amended petition on January 21,

2002, the child’s paternal grandparents filed their petition in intervention in suit affecting

the parent-child relationship seeking access or reasonable possession of Alyssa. In

response to the grandparents’ intervention, Crystal answered by general denial and

claimed that the grandparents were not entitled to any visitation and, in the alternative, that

any visitation be supervised and restricted. Following a non-jury trial, the trial court signed

its final decree of divorce and, as material here, appointed Crystal sole managing

conservator of Alyssa, severely restricted the father’s visitation rights, and awarded the

grandparents access to Alyssa.


          Crystal filed specific proposed findings of fact and conclusions of law requesting,

among other things, that the trial court find that (13) the grandparents have limited access

and (14) that it is in the best interest of the child that the grandparents have access. Also,

Crystal requested that the trial court conclude as a matter of law that the grandparents


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“should have grandparent’s access to the child according to the Texas Family Code,

Section 153.433.” The trial court made findings of fact and conclusions of law which

included findings that both parents were fit persons to be appointed conservators of Alyssa

and that the grandparents were fit persons to have possession of and visitation with

Alyssa. Also, by conclusion of law number 11, the trial court concluded that it was in the

child’s best interest that the grandparents be granted visitation and access as provided in

the decree.


       Relying on Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000),

by her first issue, Crystal contends section 153.433 of the Family Code is unconstitutional,

and by her second issue asserts the trial court abused its discretion in granting

grandparent access to Alyssa. Because both issues are based on Troxel, we will consider

them together.


       Texas statutes are presumed to be constitutional, Smith v. Davis, 426 S.W.2d 827,

831 (Tex. 1968), and the burden of demonstrating constitutional invalidity rests upon the

party assailing the statute. Robinson v. Hill, 507 S.W.2d 521, 524 (Tex. 1974); Smith v.

Craddick, 471 S.W.2d 375, 378 (Tex. 1971). Although Crystal contends here that section

153.433 is unconstitutional, because a claim that a statute is unconstitutional is an

affirmative defense and must be raised by pleading in the trial court, Tex. R. Civ. P. 94;

Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 483 (Tex.App.--Houston [1st

Dist.] 1993, writ denied), her contention was not before the trial court. In addition, a claim


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of invalidity of a statute cannot be asserted for the first time on appeal. In City of San

Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986), the Court held that the court of

appeals should not have addressed a constitutional challenge because, as here, the

constitutional question was raised for the first time on appeal. Later, in Dreyer v. Greene,

871 S.W.2d 697, 698 (Tex. 1993), the Court declined to address a constitutional issue

because it was raised for the first time on appeal.


           Moreover, Crystal did not contend that the grandparents should not be awarded

any access in the trial court but instead, the contested issue was the terms of the

grandparent access. However, by this appeal she requests that the order of the trial court

granting specific access and visitation to the grandparents be reversed and that section

153.433 be held unconstitutional.2 Considering her position in the trial court and the fact

that she does not attack the finding of the trial court that the grandparents “are fit persons

to have possession of the child and visitation with the child,” even if Troxel presents

“guidelines,” a question we do not decide, the suggested guidelines are not controlling here

because:


       •        section 26.10.160(3) of the Revised Code of Washington permitted
                “any person” to petition for visitation “at any time;” however, the Texas
                provision is limited to actions by a grandparent.




       2
      Crystal does not contend that this proceeding be reversed and remanded for further
proceedings.

                                                4
      •      in Troxel, 120 S.Ct. at 2061, the Court described the Washington
             statute as being “breathtakingly broad,” and


      •      declined to define the “precise scope of the parental due process right
             in the visitation context,” 120 S.Ct. at 2064, but concluded:


                    Because much state-court adjudication in this
                    context occurs on a case-by-case basis, we
                    would be hesitant to hold that specific
                    nonparental visitation statutes violate the Due
                    Process Clause as a per se matter; and


      •      as the court observed in Lilley v. Lilley, 43 S.W.3d 703 (Tex.App.--
             Austin 2001, no pet.), unlike the parents therein, the parents of the
             child in Troxel were never married, and section 153.433 of the Texas
             Family Code is not as “breathtakingly broad” as the Washington
             statute considered in Troxel.


Moreover, although Crystal’s brief suggests that Troxel sets out guidelines, the Court

declined to define the “precise scope of the parental due process right in the visitation

context,” and the decision was only a “plurality” decision. Issues one and two are

overruled.


      Accordingly, the judgment of the trial court is affirmed.



                                         Don H. Reavis
                                           Justice




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