      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00004-CV



                                  Cheyenne Winters, Appellant

                                                 v.

                              Thomas Marshall Winters, Appellee


      FROM THE DISTRICT COURT OF MILLS COUNTY, 35TH JUDICIAL DISTRICT
          NO. 07-02-5943, HONORABLE STEPHEN ELLIS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Cheyenne Winters sued appellee Thomas Marshall Winters for divorce,

seeking custody of the couple’s two children.1 Marshall counter-sued and likewise sought custody

of the children. The jury appointed the parties joint managing conservators and awarded Marshall

the exclusive right to designate the children’s primary residence. The trial court rendered a decree

on the jury’s verdict. In four issues on appeal, Cheyenne asserts that (1) the trial court abused its

discretion in permitting a jury trial on the conservatorship issue when “there was already a judicial

finding of family violence against [Marshall],” (2) the court erred in submitting the conservatorship

issue to the jury in light of that finding, (3) the trial court and the jury “disregard[ed] credible

evidence adduced at trial that a protective order was issued finding family violence by [Marshall],”




       1
          Because the parties have the same last name, to avoid confusion, we will refer to them by
their preferred given names, Cheyenne and Marshall.
and (4) “[Cheyenne] was ‘home-towned’ and did not receive a fair trial.” We will affirm the trial

court’s decree.


                        FACTUAL AND PROCEDURAL BACKGROUND

                  Cheyenne and Marshall were married in 2002 and had two children. After an alleged

incident of family violence, Cheyenne filed for divorce in 2007 and requested a protective order

against Marshall. In an affidavit in support of her request for a temporary ex parte protective order,

Cheyenne averred that Marshall had a history of alcohol abuse and physical violence and had

recently abused her and the couple’s daughter. Based on the affidavit, the court entered a temporary

protective order and scheduled a hearing on Cheyenne’s motion for a permanent order.

                  At the subsequent hearing, Cheyenne testified that Mashall had committed several

incidents of domestic violence against her and the couple’s young daughter. Marshall and his

psychologist also testified. Marshall largely denied Cheyenne’s accusations, and the psychologist

testified that Marshall did not have a violent personality and was not a threat to Cheyenne or the

children. After the hearing, the trial court entered a permanent protective order, finding that

Marshall committed family violence against Cheyenne. The court, however, specifically noted in

the order that it did not find that Marshall committed family violence against the couple’s children.

                  Marshall counter-sued for divorce, requested custody of the children, and demanded

a jury trial on the issue of conservatorship. During trial, the court admitted the protective order into

evidence over Marshall’s objection. The jury appointed both parents joint managing conservators

and awarded Marshall the exclusive right to designate the children’s permanent residence. The court

rendered a divorce decree on the jury’s verdict. Cheyenne appeals.

                                                   2
                                    STANDARD OF REVIEW

                Cheyenne’s issues on appeal require us to interpret the family code.               The

interpretation of a statute is a question of law, which we review de novo. F.F.P. Operating Partners,

L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). Our objective in interpreting any statute is to

determine legislative intent. Mid-Century Ins. Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007).

We look to the statute’s plain meaning and construe it as a whole to give effect to every part, see id.,

unless such a construction would lead to absurd or nonsensical results, FKM P’ship v. Board of

Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008); see also Fitzgerald v. Advanced

Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999) (“[I]t is a fair assumption that the

Legislature tries to say what it means, and therefore the words it chooses should be the surest guide

to legislative intent.”). We may consider the object of the statute, legislative history, and the

consequences of a proposed construction. Tex. Gov’t Code Ann. § 311.023(1), (3), (5) (West 2005).


                                           DISCUSSION

                In her first two issues, Cheyenne asserts that the trial court erred in allowing a jury

trial on the issue of conservatorship and in submitting the conservatorship question to the jury in

light of the court’s prior finding in the protective order that Marshall had committed family violence

against her. Cheyenne asserts that, in light of such a finding, subsections (a) through (c) of section

153.004 of the family code prohibit Marshall from being appointed as a joint managing conservator.

Subsections (a) through (c) of section 153.004 state:




                                                   3
       (a)     In determining whether to appoint a party as a sole or joint managing
               conservator, the court shall consider evidence of the intentional use of
               abusive physical force by a party against the party’s spouse, a parent of the
               child, or any person younger than 18 years of age committed within a
               two-year period preceding the filing of the suit or during the pendency of
               the suit.

       (b)     The court may not appoint joint managing conservators if credible evidence
               is presented of a history or pattern of past or present child neglect, or physical
               or sexual abuse by one parent directed against the other parent, a spouse, or
               a child, including a sexual assault in violation of Section 22.011 or 22.021,
               Penal Code, that results in the other parent becoming pregnant with the child.
               A history of sexual abuse includes a sexual assault that results in the other
               parent becoming pregnant with the child, regardless of the prior relationship
               of the parents. It is a rebuttable presumption that the appointment of a parent
               as the sole managing conservator of a child or as the conservator who has the
               exclusive right to determine the primary residence of a child is not in the best
               interest of the child if credible evidence is presented of a history or pattern of
               past or present child neglect, or physical or sexual abuse by that parent
               directed against the other parent, a spouse, or a child.

       (c)     The court shall consider the commission of family violence in determining
               whether to deny, restrict, or limit the possession of a child by a parent who
               is appointed as a possessory conservator.


Tex. Fam. Code Ann. § 153.004(a)-(c) (West 2008).

               Although section 153.004 prohibits the appointment of joint managing conservators

if there is credible evidence of a history or pattern of physical abuse, that section does not affect a

party’s right to demand a jury trial on the issue of conservatorship. Section 105.002 of the family

code requires the court to hold a jury trial on issues of conservatorship and to submit those issues

to a jury if one party properly demands a jury trial. See id. § 105.002 (West 2008). Further, the court

may not contravene the jury’s verdict on issues on conservatorship. Id. Section 105.002 states:




                                                   4
       (a)     Except as provided by Subsection (b), a party may demand a jury trial.

       (b)     A party may not demand a jury trial in:

               (1)      a suit in which adoption is sought, including a trial on the issue of
                        denial or revocation of consent to the adoption by the managing
                        conservator; or
               (2)      a suit to adjudicate parentage under Chapter 160.

       (c)     In a jury trial:

               (1)      a party is entitled to a verdict by the jury and the court may not
                        contravene a jury verdict on the issues of:

                        (A)       the appointment of a sole managing conservator;
                        (B)       the appointment of joint managing conservators;
                        (C)       the appointment of a possessory conservator;
                        (D)       the determination of which joint managing conservator has
                                  the exclusive right to designate the primary residence of
                                  the child;
                        (E)       the determination of whether to impose a restriction on the
                                  geographic area in which a joint managing conservator may
                                  designate the child’s primary residence; and
                        (F)       if a restriction described by Paragraph (E) is imposed, the
                                  determination of the geographic area within which the joint
                                  managing conservator must designate the child’s primary
                                  residence; and

               (2)      the court may not submit to the jury questions on the issues of:

                        (A)       support under Chapter 154 or Chapter 159;
                        (B)       a specific term or condition of possession of or access to the
                                  child; or
                        (C)       any right or duty of a conservator, other than the
                                  determination of which joint managing conservator has the
                                  exclusive right to designate the primary residence of the child
                                  under Subdivision (1)(D).


Id.; see also Alexander v. Rogers, 247 S.W.3d 757, 761 (Tex. App.—Dallas 2008, no pet.) (party is

entitled to jury trial on conservatorship issue).

                                                     5
                Cheyenne has provided no support, nor have we found any, for her contention that

the court’s finding of family violence in a protective order effectively trumps a party’s right to a jury

trial on conservatorship issues under the plain language of section 105.002. Our conclusion that it

does not is bolstered by subsection (f) of section 153.004, which contemplates another use for the

protective order. That subsection instructs the fact-finder to consider the protective order in deciding

whether there is credible evidence of a history or pattern of abuse. It states:


        In determining under this section whether there is credible evidence of a history or
        pattern of past or present child neglect or physical or sexual abuse by a parent
        directed against the other parent, a spouse, or a child, the court shall consider whether
        a protective order was rendered under Chapter 85, Title 4, against the parent during
        the two-year period preceding the filing of the suit or during the pendency of the suit.


Tex. Fam. Code Ann. § 153.004(f) (West 2008). Thus, while the protective order must be

considered by the fact-finder in making its conservatorship decision, it is not, as Cheyenne asserts,

dispositive of that issue. Id.; Alexander, 247 S.W.3d at 764 (“[W]hile section 153.004(f) of the

family code requires the fact finder to consider the entry of a protective order . . . , it does not make

the entry of the protective order dispositive on the issue of conservatorship.”).

                In light of the foregoing, we conclude that the trial court did not err in allowing a jury

trial on the question of conservatorship or in submitting that issue to the jury. We overrule

Cheyenne’s first two issues.

                In her third issue, Cheyenne asserts that the trial court and the jury “disregarded

credible evidence adduced at trial that a protective order was issued finding family violence by

[Marshall].” Cheyenne does not, however, challenge the factual or legal sufficiency supporting the



                                                    6
jury’s verdict. She complains only that the trial court and the jury ignored certain evidence of family

violence that she presented here—namely, the court’s protective order and its finding of family

violence. As discussed above, however, subsection 153.004(f) of the family code requires only that

the fact-finder consider whether a protective order was rendered in determining if there is credible

evidence of a history or pattern of family violence. Tex. Fam. Code Ann. § 153.004(f). Thus, we

must decide if the jury considered the protective order in making its conservatorship decision.

                In the present case, the trial court admitted the protective order into evidence. The

court also properly charged the jury on its duty to consider credible evidence of intentional physical

abuse by one parent against the other. The record, therefore, demonstrates that the jury considered

the protective order as required by section 153.004(f). Aside from alleging that the jury arrived at

the “wrong verdict,” Cheyenne presents no support for her contention that the jury failed to consider

the protective order in its deliberations. To the contrary, the record shows that the protective order

was in evidence and the jury was properly instructed in the relevant law. As the sole judge of the

weight and credibility of the evidence, the jury could have concluded that the findings of family

violence in the protective order here, as well as the other testimony and evidence adduced at trial,

did not constitute credible evidence of a history or pattern of physical abuse. Alexander, 247 S.W.3d

at 764; Garner v. Garner, 200 S.W.3d 303, 310 (Tex. App.—Dallas 2006, no pet.); see also Tex.

Fam. Code Ann. § 153.004(b). Accordingly, we conclude that the jury considered the order in its

deliberations as required by subsection 153.004(f). We therefore overrule Cheyenne’s third issue.

                In her fourth issue, Cheyenne asserts that she was “home-towned” and did not receive

a fair trial. Rule of appellate procedure 38.1(h) requires that an appellant’s brief “contain a clear and



                                                   7
concise argument for the contentions made, with appropriate citations to authorities and to the

record.” Tex. R. App. P. 38.1(h). Cheyenne failed to cite a single legal authority in support of her

contention that she did not receive a fair trial. Because Cheyenne has failed to adequately brief it,

her fourth issue is waived. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 410 (Tex. 1997)

(failure to brief an argument waives error on appeal); Fredonia State Bank v. General Am. Life Ins.

Co., 881 S.W.2d 279, 284-85 (Tex. 1994) (holding that appellate court has discretion to deem issues

waived due to inadequate briefing). We overrule Cheyenne’s fourth issue.


                                         CONCLUSION

               Having overruled Cheyenne’s four issues on appeal, we affirm the divorce decree.




                                              __________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 13, 2010




                                                 8
