







Affirmed as Modified and Majority and Concurring Opinions filed May 20,
2004








Affirmed as Modified and Majority and Concurring Opinions filed May 20,
2004.
 
 
In The
 
Fourteenth Court of Appeals
_______________
 
NO. 14-02-01134-CV
_______________
 
IN THE INTEREST OF D.R.S.
 
 
_________________________________________________________________________
 
On Appeal from the County Court at Law
No. 1
Brazos County, Texas[1]
Trial Court Cause No. 51662‑CV
_________________________________________________________________________
 
M A J O R I T Y  
O P I N I O N
 




In
this child custody and possession case, Shelly Simmons appeals on various
grounds a judgment appointing her aunt and uncle, Penny and Bobby Lee (the ALees@), as well as her, joint managing
conservators of Simmons=s child, D.R.S. (the Achild@),[2]
and imposing a geographical restriction on Simmons=s right to establish the primary
residence of the child within the State of Texas.  We affirm as modified.
Temporary Orders
Simmons=s first point of error argues that
the trial court violated her due process rights when it granted: (1) an ex
parte temporary restraining order based on inadequate allegations in Penny Lee=s affidavit; and (2) a temporary
order appointing the Lees the temporary sole managing conservators during the
pendency of the suit.  Although
recognizing that temporary orders generally are not appealable,[3]
Simmons asserts that, under the Acollateral consequences@ doctrine, this issue is not moot
because the temporary orders severely prejudiced her during trial.  This alleged prejudice arose in that: (1)
allusions by counsel during trial to the temporary orders being agreed misled
the jury into thinking that Simmons was an uncaring mother; and (2)  the temporary orders weakened her claim for
sole managing conservatorship at trial by preventing her from having actual
care, control, and possession of the child during that period.[4]




The
collateral consequences exception to the mootness doctrine has been applied when
prejudicial events have occurred Awhose [sic] effects continued to
stigmatize helpless or hated individuals long after the unconstitutional
judgment had ceased to operate.@  Gen. Land Office
v. OXY U.S.A., Inc. 789 S.W.2d 569, 571 (Tex. 1990).  In this case, Simmons fails to cite any cases
in which the doctrine has been applied in a child custody context.  In addition, her reliance on the collateral
consequences doctrine is premised upon: (1) the possibility that, but for the
temporary orders, the evidence otherwise supported her being appointed sole
managing conservator; and (2) the effects of the temporary orders being long
lasting.  Regarding the first premise, as
discussed below with regard to her second point of error, the evidence in the
case did not remotely support her appointment as sole managing conservator (nor
did the jury hesitate to so conclude, deliberating only four and a half hours
to reach agreement on all nine questions in the verdict).  As to the second premise, the conservatorship
decision is subject to modification to the extent of changed circumstances with
regard to Simmons=s fitness to act as sole managing conservator.[5]  Therefore, her first point of error fails to
demonstrate effects that would continue to stigmatize a helpless or hated
individual long after the temporary orders ceased to operate and thereby
overcome the mootness of those orders. 
Accordingly, it is overruled.
Sufficiency of Evidence
Simmons=s second point of error challenges
the trial court=s denial of her motion to disregard the jury=s answers to questions one and three
in the jury charge on the ground that the evidence was legally insufficient to
show physical abuse, severe neglect, abandonment, alcohol or drug abuse, or
very immoral behavior on her part.
A
trial court may disregard a jury finding only if it is unsupported in the
evidence,[6]
the issue is immaterial, or the question has been rendered immaterial by other
findings.  Spencer v. Eagle Star Ins.
Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994).  In the absence of an assignment of error to
the charge, we review the sufficiency of the evidence in light of the charge
submitted.  Bradford v. Vento, 48
S.W.3d 749, 754 (Tex. 2001).
In
this case, the jury instructions stated, in part:




                                                           Parental
Presumption
 
You are instructed
that, unless you find that the appointment of a parent would not be in the best
interest of the child because the appointment would significantly impair the
child=s physical health or emotional development, a parent
shall be appointed sole managing conservator, or a parent shall be appointed
with another as joint managing conservators, of the child.[[7]]
 
                                              Rebutting the
Parental Presumption
 
You are further
instructed that the presumption that a parent should be appointed as a managing
conservator of the child is rebutted, if you find that:
(1)       the parent has voluntarily relinquished
actual care, custody, control, and possession of the child to a non-parent for
a period of one year or more, a portion of which was within 90 days preceding
the date of intervention in or filing of the suit; and
(2)       the appointment of the non-parent as
managing conservator is in the best interest of the child.[[8]]
 




Following these
instructions, questions 1 and 3 of the jury charge, respectively, asked: (1) AWould the appointment of [Simmons] as
sole managing conservator significantly impair the child=s physical health or emotional
development?@; and (2) ADo you find that [Simmons]
voluntarily relinquished actual care, custody, control, and possession of the
child to a non-parent for a period of one year or more, a portion of which was
within ninety (90) days preceding August 11, 2000?@ 
Although the jury answered questions 1 and 3 affirmatively, those
affirmative answers would only have been necessary, and thus material, to a
decision that Simmons not be appointed a managing conservator at all.  Neither finding was necessary under the
charge or applicable law to support the judgment=s appointment of Simmons as merely a
joint managing conservator, rather than the sole managing conservator.  Therefore, any insufficiency of the evidence
to support those findings is not a ground for reversal of the judgment.  Accordingly, Simmons=s second point of error is overruled.
Apportionment of Parental Rights
Simmons=s third point of error argues that
the judgment violated: (1) her constitutional right to make child-rearing
decisions for her child by apportioning those parental rights between herself
and the Lees; and (2) her statutory right to have a jury decide the primary
residence of the child by restricting the geographic area in which she could
establish that residence to a ten county area, rather than the entire State of
Texas, as provided in the jury=s response to question 7 in the charge.  Correspondingly, the Lees= two cross points challenge the
denial of their request to disregard the jury=s answer to question 7 on the grounds
that: (1) it was rendered immaterial by the jury=s other findings; and (2) the
evidence was legally and factually insufficient to support the jury=s answer to that question.
As
to Simmons=s first contention, a trial court is
expressly allowed by statute to limit the rights and duties of a parent
appointed as a conservator if, as in this case, the court makes a written
finding that the limitation is in the best interest of the child.[9]  Because Simmons does not challenge the
constitutionality of this provision, her third point of error fails to
demonstrate any constitutional violation by the trial court=s limitation of her parental rights
in accordance with it and is overruled with regard to the first contention.




Regarding
the residency issue, an order appointing joint managing conservators must,
among other things, designate which conservator has the exclusive right to
determine the primary residence of the child and either: (1) establish a
geographic area in which the conservator may do so; or (2) specify that the
conservator may determine the child=s primary residence without
geographic restriction.  Tex. Fam. Code Ann. ' 153.134(b)(1) (Vernon Supp.
2004).  However, a party is entitled to a
jury verdict on the determination of the primary residence of the child,[10]
and this right may not be contravened by a trial court.[11]

In
this case, the jury found in its answers to questions 7-9 of the charge that:
(1) Simmons was the joint managing conservator with whom the child=s primary residence should be; and
(2) the place of that residence should be geographically  restricted to the State of Texas. By
contrast, the judgment gave Simmons the exclusive right to determine the
primary residence of the child only within a ten county area of the State.[12]




Although
the Lees seek to challenge the legal and factual sufficiency of the evidence to
support these jury findings, they have cited, and we have found, no portion of
the record at which they sought or obtained a ruling from the trial court on
either sufficiency challenge.[13]
Nor have they cited any authority that would excuse the requirement to do so.[14]
Therefore, their sufficiency challenges present nothing for our review, and are
overruled.




The
Lees also contend that the jury=s answer to question 7, that the child should primarily reside
with Simmons, was rendered immaterial by the jury=s answer to question 1, that the
appointment of Simmons as sole managing conservator would significantly
impair the child=s physical or emotional development.  The Lees argue that joint managing
conservatorship combined with primary residence is so much like a sole managing
conservatorship that a finding of significant impairment as to the latter
should apply equally to the former.  To
whatever extent this may be true, it is neither consistent with the Family Code
sections upon which the jury charge was based[15]
nor within our province to re-legislate. 
Therefore, the Lees= cross-points are overruled. 
Because we thus have no basis to affirm the portion of the judgment
imposing the more narrow residence restriction in the judgment than was
provided in the jury=s answer to question 9, we sustain Simmons=s third point of error to that
extent.
Possession Order
Simmons=s fourth point of error asserts the
trial court erred in entering a possession order that substantially varied from
the standard possession order[16]
and granted the Lees more time of possession than they sought.  The order essentially provides for the child
to alternate between Simmons and the Lees every three weeks.
There
is a rebuttable presumption that a standard possession order: (1) provides
reasonable minimum possession of a child for a parent named as a joint managing
conservator; and (2) is in the best interest of the child.  Tex.
Fam. Code Ann. ' 153.252 (Vernon 2002). 
In ordering terms of possession other than a standard possession order,
a court is to be guided by the guidelines established by the standard
possession order and may consider: (1) the age, developmental status,
circumstances, needs, and best interest of the child; (2) the circumstances of
the managing conservator and possessory conservator; and (3) any other relevant
factor.  Id. ' 153.256.
In
this case, the trial court=s decision that the best interest of the child was to have a
non-standard possession order was supported by its findings of fact and
conclusions of law that: (1) Simmons had been irresponsible in numerous
respects concerning herself and her children; (2) the Lees had shown the
ability to act in the best interest of the child; (3) the joint managing
conservators live 78 miles apart; and (4) a more stable environment for the
child would be to spend three week periods with the respective joint managing
conservators, rather than undergo the frequency of movement and disruption of
daily schedule that would occur under a standard possession order.




Simmons
challenges the non-standard possession order on the grounds that: (1) it
infringes on her constitutionally protected rights to determine with whom her
son will associate; (2) no evidence justified the deviation from the standard
possession order; and (3) the arrangement provided would be disruptive and
difficult for the child.  Regarding the
first contention, as noted above, a trial court is expressly allowed by statute
to enter a non-standard possession order if it is in the best interest of the
child.  Because Simmons does not
challenge the constitutionality of this provision, her fourth point of error
fails to demonstrate any constitutional violation by the trial court=s order entered in accordance with
that statute. As to the second contention, Simmons does not specify how the
evidence fails to support any of the trial court=s findings of fact or conclusions of
law, and thus presents nothing for our review. 
On the third contention, the possession arrangement provided in the
order is unquestionably disruptive and difficult for the child (as well as the
joint managing conservators).  However,
Simmons cites no evidence suggesting any less disruptive arrangement that was
proposed to the court and would also satisfy the competing objective to give
the child adequate time with the respective joint managing conservators.[17]  Accordingly, Simmons=s fourth point of error is
overruled.  The portion of the judgment
imposing a ten-county geographical restriction on Simmons=s right to establish the residency of
the child is reversed, judgment is rendered that this restriction will instead
be the State of Texas, and the remainder of the judgment is affirmed.
 
/s/        Richard H. Edelman
Justice
 
Judgment rendered
and Majority and Concurring Opinions filed May 20, 2004.
Panel consists of
Justices Edelman, Frost, and Seymore. 
(Frost, J., concurring).
 
 




[1]           Effective
September 1, 2003,
Brazos County is no longer a part of the district over which the First and
Fourteenth Courts of Appeals have jurisdiction. 
See Act of May 1, 2003, 78th Leg., R.S., ch. 44, 2003 Tex. Gen.
Laws 81.  The Act applies to cases in
which the transcripts were not filed before the effective date of the Act,
September 1, 2003.  Because the record in
this case was filed before the effective date of the Act, we have jurisdiction
over this case.


[2]           At the
time the judgment was entered in this case, the child was four years old.


[3]           See
Tex. Fam. Code Ann. ' 105.001(e) (Vernon Supp. 2004) (temporary orders in
suits affecting parent-child relationship are not subject to interlocutory
appeal); In re Tex. Natural Res. Conservation Comm=n, 85 S.W.3d
201, 205 (Tex. 2002) (noting that temporary restraining orders are generally
not appealable); In re P.R., 994 S.W.2d 411, 417 (Tex. App.CFort Worth 1999, pet. dism=d w.o.j) (recognizing that temporary conservatorship
order becomes moot and unappealable upon signing of final judgment appointing
permanent conservator).


[4]           However,
even though the effect of the temporary orders was to require D.R.S. to spend
time with both parties, this would not be evidence of a voluntary
relinquishment.  See In re M.W.,
959 S.W.2d 661, 668 (Tex. App.CTyler 1997, writ denied) (finding a parent=s relinquishment ceases to be voluntary once temporary
orders are issued).


[5]           See
Tex. Fam. Code Ann. ' 156.001, .101 (Vernon 2002 & Supp. 2004).


[6]           Tex. R. Civ. P. 301.


[7]           See
Tex. Fam. Code Ann. ' 153.131(a) (Vernon 2002); id. ' 153.372(b) (the procedural and substantive standards
regarding a court-ordered joint managing conservatorship apply to a nonparent
joint managing conservator).


[8]           See
Tex. Fam. Code Ann. ' 153.373 (Vernon 2002).


[9]           See
Tex. Fam. Code Ann. ' 153.072 (Vernon 2002).  In this case, the court made a written
finding on page 2 of the judgment that Athe
following orders [which include the apportionment of parental rights among the
joint managing conservators] are in the best interest of the child.@


[10]          Act of
May 8, 1997, 75th Leg., R.S., ch. 180, ' 1, 1997
Tex. Gen. Laws 1033-34 (current version at Tex.
Fam. Code Ann. ' 105.002(c)(1)(D-F) (Vernon Supp. 2004).


[11]          Act of
May 8, 1997, 75th Leg., R.S., ch. 180, ' 1, 1997
Tex. Gen. Laws 1033, 1034, repealed by Act of May 27, 2003, 78th Leg.,
R.S., ch. 1036, ' 22, 2003 Tex. Gen. Laws 2987, 2994.  Lenz v. Lenz, 79 S.W.3d 10, 19-20
(Tex. 2002).


[12]          At the
time this case was tried in 2002, an order designating a joint managing
conservator having the exclusive right to determine the primary residence of
the child could allow the conservator to do so only either: (1) without any
geographic restriction; or (2) within an area consisting of the county in which
the child was to reside and any county contiguous thereto.  See Act of May 17, 1999, 76th Leg.,
R.S., ch. 936, ' 2, 1999 Tex. Gen. Laws 3674, 3674 (current version at
Tex. Fam. Code Ann. ' 153.134(b)(1) (Vernon Supp. 2004)).  Because the Lees have not challenged the
geographic restriction portion of the jury charge as being contrary to this
provision or otherwise, we review the sufficiency of the evidence by reference
to the charge submitted.


[13]          See Tex.
R. App. P. 33.1(a) (requiring complaints to be presented in the trial court in
order to be preserved for appeal); Tex.
R. Civ. P. 324 (requiring a complaint as to the factual sufficiency of
the evidence to support a jury finding to be raised in a motion for new trial
as a prerequisite to presenting it on appeal); T.O. Stanley Boot Co. v. Bank
of El Paso, 847 S.W.2d 218, 220 (Tex. 1992) (reiterating that a no evidence
point of error may be preserved in the trial court by: (1) a motion for
instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3)
an objection to the submission of the issue to the jury; (4) a motion to
disregard the jury=s answer to a vital fact issue; or (5) a motion for
new trial).  In this case, the Lees= motion to disregard the jury answer was based solely
on the materiality of the answer (not the sufficiency of the evidence) and even
acknowledged that a record had not been made of their objections to the charge
and stated (without citation of authority) that the trial court in a family law
case cannot enter a judgment notwithstanding the verdict.


[14]          When a
judgment is entered notwithstanding one or more jury findings, an appellee may
bring forward by cross-point in his appellate brief any ground which would have
vitiated the verdict or prevented an affirmance of the judgment had it been
rendered in accordance with the verdict, including a challenge to the
sufficiency of the evidence to support the findings.  Tex.
R. Civ. P. 324(c).  However, in
this case, judgment was not entered notwithstanding the answer to question 7,
and the Lees= cross-points do not challenge the sufficiency of the
evidence to support the jury=s answer to question 9.


[15]          See
supra, notes 5 and 6.


[16]          See
Tex. Fam. Code Ann. ' 153.311-.317 (Vernon 2002 & Supp. 2004).


[17]          Moreover,
to the extent that Simmons is sincere in wishing to reduce disruption for the
child, she need only demonstrate to the court that she is capable of assuming
greater responsibility for the child=s care.


