                                                                                                                                                  i

Chief Justice                                                                                                             Clerk
James T. Worthen                                                                                                          Cathy S. Lusk

                                          Twelfth Court of Appeals
Justices                                                                                                                  Chief Staff Attorney
Sam Griffith                                                                                                              Margaret Hussey




            Monday, July 31, 2006


            Mr. H. Philip Campbell                                           Mr. Scott R. Ellis
            100 E.Whitestone Blvd.                                           419 West Houston
            Suite 148-272                                                    Tyler, TX 75702
            Cedar Park, TX 78613

            RE:      Case Number:                         12-04-00290-CV
                     Trial Court Case Number:             03-3354-D


            Style: Gina Lee Stucki
                     v.

                     Paul Daniel Stucki and In the Interest of B.A.S., M.L.S., C.N.S, J.D.S and L.D.S,
                     children


            Enclosed is a copy of the Opinion issued this date in the above styled and numbered cause.
            Also enclosed is a copy of the Court's judgment.

            Very truly yours,

            CATHY S. LUSK, CLERK


           By:     KdjUMu M.fi.
                  Katrina McClenny, Chief Deputy Clerk

           CC:             Hon. John Ovard
                           Judge Carole W. Clark
                           Ms. Lois Rogers




                     1517 West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193
Serving Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Rains, Rusk, Sabine, San Augustine, Shelby, Smith, Trinity, Upshh
                                                         Van Zandt and Wood Counties
                                                         www.12thcoa.courts.state.tx.us
                                  NO. 12-04-00290-CV


                       IN THE COURT OF APPEALS


          TWELFTH COURT OF APPEALS DISTRICT


                                   TYLER, TEXAS


GINA LEE STUCKI                                             APPEAL FROM THE 321ST
V.


PAUL DANIEL STUCKI                                          JUDICIAL DISTRICT COURT OF
AND IN THE INTEREST OF
B.A.S., M.L.S., C.N.S., J.D.S.,
AND L.D.S., CHILDREN                                        SMITH COUNTY, TEXAS



                                            OPINION

       Appellant Gina Lee Stucki appeals the trial court's reformed final decree of divorce. On
appeal, Gina presents seven issues. We reverse and remand in part and affirm in part.


                                         Background

       Gina and Paul Daniel Stucki were married on October 1, 1987 and are the parents of five
children, B.A.S., M.L.S., C.N.S., J.D.S., and L.D.S. The family lived in Winnsboro, Texas. On
September 18, 2003, Gina and Paul separated and, in December, Gina moved with the children to
Georgetown, Texas without prior notice to Paul. On December 18, Paul filed for divorce. In his
petition, Paul requested that he and Gina be appointed joint managing conservators ofthe children.
In Gina's secondamended counterclaim, shecontended thatPaulcommitted adulteryandphysically
abused her and the children. Gina requested that she be appointed sole managing conservator and
that, due to an alleged history of family violence, Paul be appointed possessoryconservator with
visitation totake place only intheGeorgetown orAustin area. Gina also asked thatPaul berequired
to pay child support and spousal maintenance. Paul requested that the children's residence be
restricted to Smith or Wood counties or any contiguous counties. In her counterclaim, Gina asked
that she be given the exclusive right to designate the primary residence of the children without
geographic restriction.
        The trial court issued temporary orders on March 18, 2004 appointing Gina and Paul
temporary joint managing conservators of the children. In the order, the trial court gave Gina the
exclusive right to designate the primary residence of the children within the city of Georgetown.
According to the order, Paul was allowed weekend possession ofthe children on the first, third, and
fifth weekends of the month, with the exchange of the children to take place in Corsicana, Texas.
On the fourth weekend ofthe month, Paul was allowed Saturday visitation in Georgetown. Paul was
ordered to pay Gina the amount of $3,800 per month.
        After a final trial on May 25 and 26, 2004, the trial court signed a final decree of divorce
appointing Gina and Paul as joint managing conservators of the children. Among other orders, the
trial court ordered that Paul pay $1,750 per month in child support and $2,500 per month in spousal
maintenance. Additionally, the trial court gave Gina the exclusive right to establish the children's
primary residence,which was to be Smith Countyand/or anycontiguouscounty. However, the trial
court found that it was not in the best interest of B.A.S. to be required to reside, against her wishes,
in Smith County and/or any contiguous county. The trial court allowed Gina to establish B.A.S.'s
primary residence with otherfamily members in Williamson County and/oranycontiguous county.
        After a motion for new trial and/or to reform judgment and a hearing, the trial court reformed
the final decree of divorce. In its reformed decree, the trial courtordered that Paulpaychildsupport
in theamount of $2,187 permonth. The trial court also awarded Gina a fifty percent interest in any
and all of Paul's insurance renewal commissions payable on policies written on or before May 26,
2004. Paul was obligated to pay these renewal commissions to Gina only "if, as and when" Paul
received such commissions. Further, the trial court sua sponte struck the award of spousal
maintenance to Gina. Thereformed decree also changed thelanguage of the former decree regarding
the trial court's applicability of the residency requirement to B.A.S., finding that it was not in her
best interest "due to prior family violence and mental abuse committed against" B.A.S. by Paul.
This appeal followed.
                                      Spousal Maintenance

        In her third issue, Gina contends that the trial court abused its discretion by sua sponte
deleting the award of spousal maintenance. Gina argues that the evidence was legally and factually
insufficient to support a finding that the sua sponte removal was proper under section 8.051 of the
Texas Family Code. Paul disagrees, arguing that the trial court was within its rights to reform and/or
modify its prior ruling as it deemed appropriate. Morever, Paul contends that withdrawing the
spousal maintenance award was justified because Gina failed to rebut the presumption in section
8.053 of the Texas Family Code.
Applicable Law

       A motion for new trial shall be filed prior to or within thirty days after the judgment is
signed. Tex. R. Civ. P. 329b(a). If a motion for new trial is timely filed by any party, the trial court
has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until
thirty days after all such timely filed motions are overruled. Tex. R. Civ. P. 329b(e). If a motion for
new trial or motion to modify, correct, or reform a judgment is not determined by written order
signed within seventy-five days after the judgment was signed, it shall be considered overruled by
operation of law on expiration ofthat period. Tex. R. Civ. P. 329b(c). A motion to modify, correct,
or reform shall extend the trial court's plenary power in the same manner as a motion for new trial.
Tex. R. Civ. P. 329b(g). During the time it retains plenary power, a trial court has the power to
correct judicial mistakes as well as vacate or set aside a judgment. See Tex. R. Civ. P. 329b; Davis
v.Shanks, 911 S.W.2d 390, 396 (Tex. App.-Texarkana 1994), rev 'don other grounds, 898 S.W.2d
285 (Tex. 1995).
       A trial court may order maintenance for either spouse only ifthe duration ofthe marriage was
ten years or longer, the spouse seeking maintenance lacks sufficient property, including property
distributed to the spouse under the family code, to provide for the spouse's minimum reasonable
needs, and the spouse seeking maintenance clearly lacks earning ability in the labor market adequate
to provide support for the spouse's minimum reasonable needs.                Tex. Fam. Code Ann.
§ 8.051(2)(C) (Vernon 2006). If a court determines that a spouse is eligible to receive maintenance,
it shalldetermine the nature, amount, duration, andmanner of periodic payments by considering all
relevant factors, including the financial resources of the spouse seeking maintenance, such as the
community and separate property and liabilities apportioned to that spouse in the dissolution
proceeding, and that spouse's ability to meet the spouse's needs independently. Id. § 8.052(1)
(Vernon 2006). There is a statutory presumption that maintenance "is not warranted." Id. § 8.053(a)
(Vernon 2006). The spouse seeking maintenance must rebut the presumption that maintenance is
not warranted by exercising diligence in seeking suitable employment or developing the necessary
skills to become self-supporting during separation and during the time when the suit for dissolution
is pending. Id. § 8.053(a).
Analysis

        The final decree ofdivorce was signed on June 18,2004. Gina timely filed a motion for new
trial and/or to reform judgment on July 19, 2004. See Tex. R. Civ. P. 329b(a). Because of Gina's
motion, the trial court's plenary power was extended, and it had the power to change or alter its
judgment within seventy-five days after the final decree of divorce was signed. See Tex. R. Civ. P.
329b(c), (e), (g); Valley Steel Products, Co. v. Howell, 775 S.W.2d 34,36 (Tex. App.-Houston [1st
Dist] 1989, no writ). The trial court's reformed final decree of divorce was signed on August 27,
within the time period of the court's plenary power. See Tex. R. Civ. P. 329b(c). Therefore, the
trial court had the power to reform its final decree of divorce. We must, however, determine if the
trial court acted within its discretion in sua spontedeleting the award of spousal maintenance. We
review both an award, or lack thereof, of spousal maintenance and the trial court's power to reform
its decree of divorce under an abuse of discretion standard. See Sheshtawy v. Sheshtawy, 150
S.W.3d 772, 777 (Tex. App.-San Antonio 2004, pet. denied); Davis, 911 S.W.2d at 396. The test
for abuse of discretion is whether the trial court acted without reference to any guiding rules or
principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In other words, whether the
trial court's actions were arbitrary or unreasonable. Id. Under this standard of review, legal and
factual sufficiencyofthe evidence, although not independent grounds for asserting error, are relevant
factors in assessing whether the trial court abused its discretion. Seidel v. Seidel, 10 S.W.3d 365,
368 (Tex. App.-Dallas 1999, no pet.).
       At trial, Gina testified that she had never worked and, in the six months before trial, had done
nothing to help with finances. Paul admittedthat Gina lacked skills or training,but believedthat she
could be a "fantastic" salesperson. However, Paul stated that he did not want her to work, but
wanted her to remain at home raising the children. From his testimony, Paul appeared to want Gina
to stay home even after the divorce. Paul testified that, apart from him, Gina did not have any
independent financial resources. Gina stated that she was enrolled at a local community college and
was attempting to enter the nursing program. At the time of trial, Gina was taking a developmental
math program and, ifher prerequisites were satisfactorily completed, she would be able to enter the
nursing program in the spring. Gina's mother, Sandra Sanchez, admitted that Gina had not worked
since moving to Georgetown after the parties separated and had not taken any classes as of the date
of trial. In its final decree of divorce, the trial court found that Gina was eligible for maintenance.
In a hearing on Gina's motion for new trial and/or to reform judgment, the trial court increased its
award of child support and deleted all references to "alimony" or maintenance. However, the trial
court also awarded Gina a fifty percent interest in any and all of Paul's renewal commissions.
       Even though Gina was eligible for spousal maintenance, such award was not mandated by
the Family Code. See Tex. Fam. Code Ann. § 8.051(2)(C), 8.053(a). Admittedly, Gina had not
worked since the parties separated, although she was, at the time of trial, showing some attempt to
develop skills to become self-supporting. See id. § 8.053(a). Further, by awarding fifty percent of
Paul's renewal commissions to Gina, the trial court increased Gina's financial resources. This award

could have been a factor in determining whether to award spousal maintenance. See id. § 8.052(1).
These factors could have led the trial court to reconsider its award of spousal maintenance and
change its final decree ofdivorce. Because evidence was presented regarding Gina's lack of earning
capacity and her diligence in obtaining employment or suitable skills to support herself and the trial
court awarded her additional financial resources, we cannot conclude that the trial court abused its
discretion in deleting the award of spousal maintenance from its reformed decree of divorce. See
Sheshtawy, 150 S.W.3d at 777; Davis, 911 S.W.2d at 396. Accordingly, Gina's third issue is
overruled.




                                          Child Support

       In her sixth issue, Gina contends that the trial court abused its discretion by awarding only
$2,187 per month in child support. Gina argues that the evidenceis legallyand factuallyinsufficient
to support a finding of child support below the sum of $2,400 per month. Paul disagrees.
Applicable Law
       A trial court shall calculate net resources for the purpose of determining child support
liability. Tex. Fam. Code Ann. § 154.062(a) (Vernon 2002). Resources include one hundred
percent of all wage and salary income and other compensation for personal services, including
commissions, overtime pay, tips, and bonuses. Id. § 154.062(b)(1) (Vernon 2002). Further, in its
discretion, the trial court may exclude from self-employment income amounts allowable under
federal income tax law as depreciation, tax credits, or any other business expenses shown by the
evidence to be inappropriate in making the determination of income available for the purpose of
calculating child support. Id. § 154.065(b) (Vernon 2002). A trial court's order ofchild support will
not be disturbed on appeal unless the complaining party can show a clear abuse of discretion.
Worford, 801 S.W.2d at 109.
Analysis
       Paul testified that, according to his 2003 income tax return, his gross income was $121,140,
including a one time $20,000 bonus. He calculated his child support based on a gross income of
$101,000, subtracting self-employment taxes, gasoline, and health insurance. As such, Paul stated
that he had an adjusted gross monthly income of $5,467.13. Paul testified that, based on a gross
annual income of $101,000, his child support should be $2,186.85. Gina disagreed that the $20,000
bonus was a one time bonus and testified that Paul's employer continuously "offer[s]" bonuses. In
the original decree of divorce, the trial court ordered Paul to pay $1,750 per month based upon an
adjusted gross income of $56,000 per year and the additional needs of the children. In the reformed
decree of divorce, the trial court changed the amount ofchild support to $2,187 per month. The
reformed decree stated that the child support was based on Paul's adjusted net resources of $65,606.
The record includes no testimony or other evidence to support this amount ofadjusted net resources.
Nor does it appear that the trial court changed the amount ofchild support based on a higher amount
of adjusted yearly income. Instead, in a hearing regarding child support and spousal maintenance,
the trial court stated that it increased child support by changing previously ordered spousal
maintenance to child support.
       Regardless of the statement in the reformed decree of divorce, it appears that the trial court
based its original and reformed orders ofchild support on Paul's gross income of $101,000 and
omitted the $20,000 bonus from his resources. As such, the trial court's calculation ofPaul's child
support directly contradicts the plain language ofthe statute that includes bonuses in resources. See
id. § 154.062(b)(1). Although the trial court heard testimony regarding Paul's business expenses,
there was no testimony or evidence that the bonus was depreciation, a tax credit, or any other
business expense. See id. § 154.065(b). Therefore, because the trial court did not consider Paul's
$20,000 bonus as a part ofhis resources for purposes ofdetermining child support, we conclude that
the trial court abused its discretion. See Worford, 801 S.W.2d at 109. Accordingly, Gina's sixth
issue is sustained.



                                   Child Support Arrearage

       In her seventh issue, Gina argues that the trial court abused its discretion by failing to find
an arrearage in Paul's child support under the temporary orders. Gina contends that the evidence was
legally and factually insufficient to support a finding that there was no arrearage. Paul argues that
Gina waived her right to assert this claim on appeal because she failed to plead for any arrearage.
An appellate court reviews a trial court's decision regarding child support for an abuse ofdiscretion.
In re Tucker, 96 S.W.3d 662, 664 (Tex. App.-Texarkana 2003, no pet.). The judgment of a trial
court shall conform to the pleadings of the parties. Tex. R. Civ. P. 301; Cunningham v. Parkdale
Bank, 660 S.W.2d 810, 812 (Tex. 1983). Further, a party may not obtain a judgment based upon
a theory not pleaded.    Affiliated Capital Corp. v. Musemeche, 804 S.W.2d 216, 219 (Tex.
App-Houston [14th Dist] 1991, writ denied). Thus, a party may not be granted reliefin the absence
ofpleadings to support that relief. Cunningham, 660 S.W.2d at 813; Holm strom v.Lee, 26 S.W.3d
526, 532 (Tex. App.-Austin 2000, no pet.). Gina did not file a written pleading or motion for
enforcement to support her claim for an arrearage ofchild support. Because Gina failed to support
her claim with proper pleadings, the trial court did not abuse its discretion by failing to find an
arrearage ofchild support. Accordingly, Gina's seventh issue is overruled.


                                 Sole Managing Conservator

       In her fourth issue and as part of her fifth issue, Gina contends that the trial court abused its
discretion by failing to appoint Gina as sole managing conservator because Paul committed family
violence against Gina and her children during the marriage. Paul argues that the languageregarding
family violence was included in the reformed final decree ofdivorce prepared by Gina's attorney and
is inconsistent with the trial court's record or findings of fact and conclusions of law.
Finding in Reformed Decree of Divorce
        We must first ascertain whether there was a finding of family violence. As noted above, the
reformed final decree ofdivorce stated that B.A.S. was not required to reside in Smith County and/or
any contiguous county because the trial court found it was not in her best interest "due to prior family
violence and mental abuse committed against" B.A.S. by Paul. The Texas Rules of Civil Procedure
state that findings of fact shall not be recited in a judgment. Tex. R. Civ. P. 299a. If there is a
conflict between findings of fact recited in a judgment in violation of this rule and findings of fact
pursuant to rules 297 and 298 ofthe Texas Rules of Civil Procedure, the latter findings will control.
Tex. R. Civ. P. 299a. When findings of fact are filed by the trial court, they shall form the basis of
the judgment upon all grounds of recovery and of any defense embraced therein. Tex. R. Civ. P.
299; Guridi v. Waller, 98 S.W.3d 315, 316 (Tex. App.-Houston [1st Dist.] 2003, no pet.).
        At no time prior to the reformed decree did the trial court make a finding of family violence.
As such, with no findings offact on the issue offamily violence, we may not presume such a finding.
See Guridi, 98 S.W.3d at 316. Thus, we must consider the evidence in order to determine whether

the trial court erred in appointing Paul as a joint managing conservator.
Sole Managing Conservator
        In determining conservatorship, the best interest of the child shall be the primary
consideration. Tex. Fam. Code Ann. § 153.002 (Vernon 2002). The trial court has wide latitude
in determining the best interest of a child, and the decision of the trial court will be reversed only
when it appears from the record as a whole that the court has abused its discretion. Marriage of
Stein, 153 S.W.3d 485,488 (Tex. App.-Amarillo 2004, no pet.). It is a rebuttable presumption that
the appointment ofthe parents of a child as joint managing conservators is in the best interest of the
child. Tex. Fam. Code Ann. § 153.131(b) (Vernon 2002). A finding of a history of family violence
involving the parents of the child removes the presumption. Id.
       Evidence offamily violence determines whether a trial court may appoint the parties asjoint
managing conservators. See id. § 153.004 (Vernon Supp. 2005). The trial court shall consider


                                                   8
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 eighteen years of age committed within a two year
period preceding the filing of the suit or during the pending of the suit. Id. § 153.004(a) (Vernon
Supp. 2005). If credible evidence is presented of a history or pattern of past or present physical
abuse by one parent directed against the other parent or a child, the trial court may not appoint joint
managing conservators. Id. § 153.004(b) (Vernon Supp. 2005). In determining whether there is
credible evidence, the trial court shall consider whether a protective order was rendered against the
parent during the two year period preceding the filing of the suit or during the pending of the suit.
Id. § 153.004(f) (Vernon Supp. 2005).
        "Family violence" is an act that is intended to result in physical harm, bodily injury, assault,
or sexual assault or that is a threat that reasonably places the family member in fear of imminent
physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to
protect oneself. Id. § 71.004(1) (Vernon 2002). "Family violence" is also abuse by a member of a
family toward a child of the family. Id. § 71.004(2). "Abuse" is defined as mental or emotional
injury to a child that results in observable and material impairment in the child's growth,
development, or psychological functioning, or physical injury that results in substantial harm to the
child, excluding reasonable discipline by a parent that does not expose the child to a substantial risk
of harm. Id. § 261.001(1)(A), (C) (Vernon Supp. 2005).
        At trial, Gina testified to some incidents ofalleged family violence. However, these incidents
occurred prior to two years preceding the filing of the suit. She also testified that, about a year ago,
Paul threw a remote control at her, but struck L.D.S. instead. Gina admitted that she described Paul

as a great father in a previous hearing. Gina stated that Paul had called some of the children names,
which was contrary to her previous testimony. Gina testified that the incidents of name calling
occurred after the hearing and, more particularly, during Paul's visits to Georgetown. Then, she
stated that Paul had called the children names before the hearing, just not "vile" names. She
admitted calling Paul disparaging names. Paul testified that he had been physically, verbally, and
mentally abused during the marriage. He alleged that he was kicked in the ribs every night and
punched in the face. Despite these accusations, Paul admitted that he and Gina took a trip to Hawaii
together approximately one month before trial. According to Paul, they shared a hotel room.
          B.A.S. had heard her father call her mother "bad" names." B.A.S. stated that, in October of
2003, Paul sat on her after they had an argument. She asked him to get up, but he refused. B.A.S.
testified that she got mad, pushed Paul off, and ran to her room. According to B.A.S., on the
afternoon ofMay 7,2004, she, Gina, Paul, and three ofher siblings were in Gina's suburban. B.A.S.
was driving and, at some point, Paul began questioning B.A.S. and she refused to respond. B.A.S.
believed she may have told Paul that she hoped he would "go to hell." Paul became upset and hit
her on the head with a book. B.A.S. testified that Paul hit her hard enough to give her a headache,
but not hard enough to seriously hurt her. According to B.A.S., she asked Paul to stop, but he
refused to do so if she continued to speak rudely. At that point, B.A.S. stated that Paul hit her again
on the back of the head. B.A.S. testified that on their way home, Paul told her that she was going
to be a "slutty bitch" like her mother.
          Dr. Wade French testified that, after meeting with all the children, he never received the
impression that Paul abused the children. None ofthe children told him that Paul was abusing them
or their mother. Regarding Paul's allegedly striking B.A.S. on the head with a book, French testified
that he would have to look at that incident in the context of its origin, a highly charged emotional
atmosphere. French did not believe that this incident was strong evidence that Paul was a danger
to the children. Amber Young, a friend ofthe family, stated that, in the year before trial, B.A.S. was
doing homework and Paul asked her to take out the trash. When she did not immediately take out
the trash, Paul walked over, grabbed her arm, and pulled her from the chair across the floor to the
door. According to Young, B.A.S. got mad and yanked her arm away. Lisa Carol Lloyd, Gina's
friend, stated that she had seen the effects of abuse on Gina in the past. Lisa testified that in 2002
Paul admitted abusing Gina because he stated that he hit Gina with his fist on the side of her head.

According to Lisa, Paul stated that he felt justified because Gina hit him. Lisa observed bruises on
the side of Gina's body and a cut on her ear. However, Gina told Lisa that Paul was an excellent
father.

          The trial court was in a better position than an appellate court to determine what was in the
best interest of the children because the trial court observed the parties and witnesses, noted their
demeanor, and had the opportunity to evaluate their claims. See Martinez v. Molinar, 953 S.W.2d
399,403 (Tex. App.-El Paso 1997, no writ). B.A.S. admitted that Paul did not hit her hard enough


                                                   10
to seriously injure her. French stated that the incident must be looked at in the context ofthe family
history and did not believe that this incident was evidence that Paul was a danger to the children.
Paul's action was not a physical injury that resulted in substantial harm to B.A.S. See Tex. Fam.
Code Ann. § 261.001(1)(C). Nor did the action result in physical harm or bodily injury to B.A.S.
See id. § 71.004(1). Although there was testimony that Paul called Gina and some of the children
names, there was no testimony that the children suffered observable and material impairment as a
result. See id. § 261.001(1)(A). Moreover, none of the children told French that they had been
abused. Even though both parents and Lisa testified to family violence, the trial court was in a better
position to evaluate their claims and believe or disbelieve them. See Martinez, 953 S.W.2d at 403.
Although we do not take claims of family violence lightly, we cannot conclude from the record
before us that the trial court abused its discretion in determining that Gina failed to rebut the
presumption that both parents should be appointed joint managing conservators ofthe children. See
id. § 153.131(b). Accordingly, Gina's fourth issue and the portion of her fifth issue regarding sole
managing conservatorship are overruled.


                                          Split Residency

        In her first issue, Gina contends that the trial court abused its discretion by permitting B.A.S.
to remain in Williamson County while imposing a residency restriction on her other children,
effectively ordering the separation of the children of the same marriage. Gina argues that the trial
court did not articulate any clear or compelling reason for its order. Paul contends that the trial
court's ruling did not divide the family, but, instead, allowed B.A.S. to make her own decision
whether to live with Gina and her siblings or remain in Georgetown.
        The trial court has wide latitude in determining the best interest of a child, and the decision
of the trial court will be reversed only when it appears from the record as a whole that the court has
abused its discretion. Marriage ofStein, 153 S.W.3d at 488. The trial court, in open court, stated
that it would not force B.A.S. to visit with Paul because she was "so aligned." In its reformed decree
of divorce, the trial court found that it was not in B.A.S.'s best interest to be required to reside,
against her wishes, in Smith County and/or any contiguous county. The trial court allowed Gina to
establish B.A.S.'s primaryresidence with other family members in Williamson County and/or any


                                                   11
contiguous county.
        The evidence at trial showed that Paul and B.A.S. had a strained and difficult relationship.
B.A.S. testified that she and Paul do not "always get along," but that she enjoyed seeing him when
he was in a pleasant mood. B.A.S. admitted that when she and Paul were together, they "always end
up getting in a fight or getting mad at each other." They yell at each other, and B.A.S. stated that
Paul "sometimes" called her names. B.A.S. admitted that, after Paul hit her with the book, she asked

for Gina's cellular telephone to call Gina's lawyer and inform him of the incident. In fact, B.A.S.
stated that she might have said that she was going to call the police. B.A.S. did not believe that she
called Paul a "faggot" that day, but admitted that she had done so previously. Paul admitted that his
relationship with B.A.S. was strained. Amber Young, a friend of the family, admitted that B.A.S.
was angry at Paul. She stated that B.A.S. yelled at Paul and that they argued.
        Because B.A.S. and Paul had a strained relationship, the trial court did not abuse its
discretion by not forcing B.A.S. to live in Smith County and/or any contiguous county. Gina points
out that custody of children of the same marriage should not be divided. However, the trial court's
ruling did not result in divided custody ofthe children. See MacDonald v. MacDonald, 821 S.W.2d
458, 463 (Tex. App.-Houston [14th Dist.] 1992, no writ). Accordingly, Gina's first issue is
overruled.




                                      Residency Restriction

        In her second issue and as part ofher fifth issue, Gina contends that the trial court abused its
discretion by imposing a residency restriction against her and her four younger children. Gina argues
that the evidence is legally and factually insufficient to support a finding that the residency restriction
is in the best interest ofthe children. Paul disagrees, arguing that stability in the children's home and
surroundings and the wide latitude given a court in determining the best interest of the children
support the trial court's decision.
Applicable Law
        The public policy ofthe State ofTexas is to assure that children have frequent and continuing
contact with parents who have shown the ability to act in the best interest of the children and to
encourage parents to share in the rights and duties of raising their children after the parents have


                                                    12
separated or dissolved their marriage. Tex. Fam. Code Ann. § 153.001(a)(1), (3) (Vernon 2002).
The best interest of the children shall be the primary consideration of the court in determining the
issues ofconservatorship and possession ofand access to the children. Id. § 153.002 (Vernon 2002).
The trial court has wide latitude in determining the best interest of a child, and the decision of the
trial court will be reversed only when it appears from the record as a whole that the court has abused
its discretion. Marriage ofStein, 153 S.W.3d at 488. When rendering an order appointing joint
managing conservators, the court shall designate the conservator who has the exclusive right to
determine the primary residence of the children and establish, until modified by further order, a
geographic area in which the children are to reside and any contiguous county thereto within which
the conservator shall maintain the children's primary residence. Id. § 153.134(b)(1)(A) (Vernon
2002). The court may also specify that the conservator may determine the children's primary
residence without regard to geographic location. Id. § 153.134(b)(1)(B) (Vernon 2002).
Analysis
       In September 2003, Paul moved to Tyler from the family home in Winnsboro. In December
2003, Gina moved with the children to Georgetown without informing Paul. The temporary orders
obligated Gina to surrender the children to Paul in Corsicana on the first, third, and fifth Friday of
each month. Paul stated that, since Gina's move, he had seen the children virtually every weekend.
However, Paul testified that he drove to Georgetown to visit the children for eighteen ofthe twenty-
three weekends since the temporary orders. Although Paul asked Gina to meet him halfway with the
children, it had never happened. According to Paul, Gina would tell him that the children had
extracurricular activities and could not come to Tyler. In fact, several times his children called him
crying that they would have to miss an activity and would ask him to come to Georgetown. Gina
recalled that, in December 2003, she told the trial court that, if she were allowed to live in

Georgetown, she would meet Paul halfway every weekend so that he could stay involved with the
children. She claimed that she met Paul halfway every first and third weekend, but then admitted
that she met him halfway three or four times. Gina admitted that Paul had seen the children all but
one weekend.

       Paul believed that it was in the children's best interest for them to live close enough so that
he could see them daily and was worried about the effect that the long distance would have on their


                                                 13
relationship. Gina stated that she did not want Paul to see the children less, just to realize that he
cannot do "those things" to the children. French recommended that the children be allowed to stay
in Georgetown, but that Paul be granted at least minimum standard visitation.              Further, he
recommended that Gina be required to bring the children to Athens at least once a month and that
Paul be required to go to Georgetown another weekend during the month. French testified that the
children needed to spend their time visiting with the parent, not in the back seat of an automobile.
French agreed that the distance between Tyler and Georgetown would put time restrictions on Paul's
relationship with his children. However, French stated that visitation was complicated because of
the children's activities. In French's opinion, if Paul obligated the children to come to Tyler twice
per month, then they would be very upset with him when they missed weekend activities.
        In the reformed decree of divorce, the trial court ordered that the primary residence of the
children, except B.A.S., be Smith County and/or any contiguous county. Gina was given the
exclusive right to establish the children's primary residence within Smith County and/or any
contiguous county. Both orders were permitted by statute. See id. § 153.134(b)(1)(A). Paul and
Gina admitted that, during the pendency ofthe temporary orders, surrendering the children halfway
between Tyler and Georgetown was a failure. As a result, Paul traveled almost every weekend to
Georgetown, a burden not contemplated by the temporary orders. The trial court could have found
that the previous long distance visitation was unworkable. Both parents agreed that it was in the
children's best interest to be close to them. Although French recommended that the children be
allowed to live in Georgetown, he admitted that the long distance could have an effect on the
children's relationship with Paul. Because it was in the children's best interest to have frequent and
continuing contact with their parents and the previously ordered visitation failed, the trial court did
not abuse its discretion in ordering that the primary residence of the children, except B.A.S., be
Smith County and/or any contiguous county.             See Marriage of Stein, 153 S.W.3d at 488.
Accordingly, Gina's second issue and the portion ofher fifth issue regarding the residency restriction
are overruled.




                                            Conclusion

       Having sustained Gina's sixth issue, we reverse the reformed decree of divorce regarding


                                                  14
child support and remand to the trial court for an award consistent with this opinion. In all other
respects, the trial court's reformed decree of divorce is affirmed.




                                                                JAMES T. WORTHEN
                                                                      Chief Justice




Opinion delivered July 31, 2006.
Panel consisted of Worthen, C.J. and Griffith, J.




                                                    (PUBLISH)


                                                       15
                                 COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT


                                              JULY 31, 2006



                                       NO. 12-04-00290-CV

                                          GINA LEE STUCKI

                                                      V.

                                       PAUL DANIEL STUCKI

                     AND IN THE INTEREST OF B.A.S., M.L.S., C.N.S.,
                                   J.D.S. AND L.D.S., CHILDREN



                            Appeal from the 321st Judicial District Court
                           of Smith County, Texas. (Tr.Ct.No. 03-3354-D)


                        THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being inspected, it is the opinion of this court that there was error in a portion of the
trial court's reformed decree of divorce, and that the same should be affirmed in part and reversed
and remanded in part.
                        It is therefore ORDERED, ADJUDGED and DECREED that the portion of
the trial court's reformed decree of divorce regarding child support be reversed and the cause
remanded for further proceedings in accordance with the opinion of this court; that in all other
respects, the reformed decree ofdivorce ofthe trial court is affirmed; and that all costs ofthis appeal
are hereby adjudged against the Appellee, Paul Daniel Stucki, for which execution may issue,
and that this decision be certified to the court below for observance.

                        James T. Worthen, Chief Justice.
                        Panel consisted of Worthen, C.J. and Griffith, J.
