                                  NO. 07-03-0125-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                    APRIL 29, 2004

                         ______________________________


                    IN THE MATTER OF THE MARRIAGE OF
            DALE LANIER WILSON AND BRIDGET COLLEEN WILSON
         AND IN THE INTEREST OF LONDON ANTHONY ARCHER WILSON
                 AND AZZAN LUKE WILSON, MINOR CHILDREN

                       _________________________________

            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

               NO. 49,607-C; HONORABLE JOHN T. FORBIS, JUDGE

                        _______________________________


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


                               MEMORANDUM OPINION


      Presenting three issues, Dale Lanier Wilson challenges the jury finding designating

Bridget Colleen Wilson as joint managing conservator with the exclusive right to determine

the domicile of the children of the marriage. By his first issue, Dale contends the jury

finding awarding Bridget the exclusive right to determine the domicile of the children is

against the great weight and preponderance of the evidence. By his second issue, he
contends the trial court abused its discretion in admitting evidence of his extramarital affairs

while he was married to his first wife some four years before the birth of the children the

subject of this suit and almost ten years from the date of trial, and by his third issue

contends the trial court abused its discretion in allowing an expert to testify for Bridget even

though the expert was not designated as an expert witness by her in response to his

proper request for disclosure. We affirm.


       Before his marriage in 1993 to Bridget, Dale had one son by his first marriage.

During his marriage to Bridget, London was born in 1996 and Azzan was born in 1999.

Dale filed his original petition for divorce on February 20, 2001, alleging no fault grounds

and adultery. Among other things, Dale sought to be appointed temporary and permanent

managing conservator of the children. Acting upon Bridget’s motion for psychological

examination, the trial court appointed Edwin Basham, EdD to interview, examine, and

evaluate the parents and children and file a written report which he filed on June 24, 2002.


       Following jury selection, testimony commenced on September 17, 2002, and the

case was submitted to the jury on September 19. As material to the question of joint

managing conservatorship of the children and which parent should have the exclusive right

to determine the domicile of the children, the court’s charge was crafted as suggested by




                                               2
PJC 215.9A and question 2 of PJC 216.1 Among other instructions applicable to our

review, the trial court instructed the jury as follows:


       1.        The best interest of the children shall always be the primary
                 consideration in determining questions of managing conservatorship
                 and questions of possession of and access to the children.

       2.        You shall appoint both parents Joint Managing Conservators unless
                 you find that such an appointment is not in the best interest of the
                 children. In making this determination, you shall consider all of the
                 following factors:2

       3.        In determining which party to appoint Sole Managing Conservator, or
                 to appoint Joint Managing Conservator, who will have the exclusive
                 right to establish the residence of the children and with whom the
                 children will primarily reside, you shall consider the qualification of
                 each party without regard to the gender of the party or the children or
                 the age of the children.

       4.        In determining which party will establish the primary legal residence
                 of the children, you shall consider the qualifications of each party
                 without regard to the gender of the party or the children or the age of
                 the children.




       1
       References are to Comm. On Pattern Jury Charges, State Bar of Tex., Texas
Pattern Jury Charges, (Family ed. 2002).
       2
           (1) whether the physical, psychological, or emotional needs and development of the
children will benefit from the appointment of joint managing conservators; (2) the ability of
the parents to give first priority to the welfare of the children and reach shared decisions
in the children’s best interest; (3) whether each parent can encourage and accept a
positive relationship between the children and the other parent; (4) whether both parents
participated in children-rearing before the filing of the suit; (5) the geographical proximity
of the parents’ residences; (6) not applicable because of age of children; and (7) any other
relevant factor.

                                                3
By their answers, the jury found (1) Dale and Bridget should be appointed joint managing

conservators, (2) the children should primarily reside with Bridget, and (3) Bridget should

be entitled to establish the primary legal residence of the children if limited to Randall

County and contiguous counties.


       By his first issue, Dale contends the evidence was factually insufficient to support

the jury finding that Bridget should be awarded the exclusive right to determine the domicile

of the children. We disagree.


       Counsel for the parties recognize that the appropriate standard of review is set out

in Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001); Croucher v. Croucher,

660 S.W.2d 55, 58 (Tex. 1983); and Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.

1986), and that Dale must demonstrate on appeal that the adverse finding is against the

great weight and preponderance of the evidence.            Dale also has the burden to

demonstrate why the evidence that does not support the ruling is deficient when compared

to the other evidence of record. In re T.M., 33 S.W.3d 341, 349 (Tex.App.--Amarillo 2000,

no pet.).


       Dale suggests that the factor in determining conservatorship is set out in Holley v.

Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), and section 153.002 of the Texas Family

Code. However, the Holley factors were not submitted with the charge. Further, the jury

was instructed they should “consider the qualifications of each party without regard to the

gender of the party or the children or the age of the children” in answering the question of

                                             4
the children’s primary residence. Because neither party presented any objections to the

charge or instructions, we will measure the evidence against the statement of law

contained in the charge even if defective. Household Credit Services, Inc. v. Driscol, 989

S.W.2d 72, 88 (Tex.App.--El Paso 1998, pet. denied), citing Sage Street Associates v.

Northdale Const. Co., 863 S.W.2d 438, 447 (Tex. 1993).


       The jury finding that both parents should be appointed joint managing conservators

necessarily implies a sub-finding that the appointment was in the best interest of the

children. Dale limits his complaint to the jury finding that the children should primarily

reside with Bridget and does not complain of her appointment as joint managing

conservator. As applicable to this question, the court instructed the jury:


       Joint Managing Conservatorship does not require the award of equal or
       nearly equal periods of physical possession of and access to the children to
       each of the joint conservators; ordinarily the best interest of the child will
       require the designation of a primary residence for the children.


(Emphasis added). Accordingly, in our review of Dale’s argument that the finding is against

the great weight and preponderance, we must also review the evidence of the

qualifications of each parent.


       Dale’s argument commences with the best interest of the children analysis in Holley.

544 S.W.2d at 371-72. However, because the Holley factors were not included in the

charge to the jury, we do not test the evidence before the jury by the Holley criteria. By his

analysis Dale then emphasizes isolated instances of Bridget’s intoxication and association

                                              5
with a male friend with a criminal record. The evidence demonstrated that both parents

had education beyond high school and held good jobs. By his brief, Dale does not attempt

to demonstrate why the evidence that does not support the finding is deficient when

compared to the other evidence in the record. In re T.M., 33 S.W.3d at 349. From our

review of the record, it appears that Bridget has maintained a responsible teaching position

during the marriage, managed employees and has missed minimum days at her job. A

former co-worker who had been terminated by Bridget, testified that Bridget was a good

worker and mother.


       Pursuant to the court order for psychological examination, Dr. Basham interviewed

the parents and the children.3 Among other things, his written report indicated:


       1.        neither parent has a history of serious mental or emotional problems,
                 and

       2.        the parents are cooperating with the temporary visitation schedule
                 and appear to be able to communicate with each other regarding the
                 important issues about the children.


Although the report noted Bridget admitted occasional lapses in judgment, it also indicated

that she was an emotionally sensitive and caring mother. The report further established

that Dale is a highly involved and responsible father.




       3
           Six hour interview with Dale and seven hour interview with Bridget.

                                               6
       Considering the instructions to the jury, Dale does not contend the jury finding

appointing Bridget as joint managing conservator was error, and the absence of an

explanation why the finding is deficient when compared to the other evidence in the record,

we conclude that the jury answer to question two was not against the great weight and

preponderance of the evidence. Issue one is overruled.


       By his second issue, Dale contends the trial court erred in admitting evidence of his

extramarital affairs while he was married to his former wife. We disagree. By his

pleadings, Dale made Bridget’s extramarital affair an issue. Also, when Dale called his

former wife as a witness during his case-in-chief, he sought to establish by her testimony

that he was a good father and tried to instill moral values in their son. Then, during cross-

examination, Bridget’s attorney asked Dale’s former wife


       [w]as it not an immoral act on Dale’s part that caused you some problems
       during your marriage?


After a conference out of the presence of the jury, the trial court overruled Dale’s objection.

Among other things, the trial court noted that Dale had opened the door and allowed

questions which established that Dale also had an affair during his first marriage. Having

placed his own conduct in issue by the testimony of his former wife, he waived any

objection by inviting the alleged error of which he now complains. See General Chemical

Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993), cert. dism’d, 510 U.S. 985, 114

S.Ct. 490, 126 L.Ed.2d 440 (1993).


                                              7
       Moreover, in Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998), the Court held that (1) evidentiary rulings are “committed to the trial court’s sound

discretion,” (2) a trial court abuses its discretion when it rules “without regard for any

guiding rules or principles,“ and (3) an appellate court must uphold the trial court’s

evidentiary ruling if there is any legitimate bases for the ruling. Considering that the best

interest of the children was the court’s “primary consideration in a suit affecting the parent-

child relationship,” see In re J.W., 113 S.W.3d 605, 612 (Tex.App.--Dallas 2003, pet.

denied), and the major objective of this appeal and Dale’s trial strategy to make morality

an issue, we conclude the trial court did not abuse its discretion in admitting evidence of

his extramarital affair. Issue two is overruled.


       By his third issue, Dale contends the trial court abused its discretion is allowing Dr.

Basham to testify when called by Bridget over his objection even though Dr. Basham was

not designated as an expert witness by Bridget in response to Dale’s proper request for

disclosure. We disagree.


       Dale does not contend the trial court erred in admitting the first amended order on

motion for psychological examination or the four and one-half page written child custody

evaluation of Dr. Basham,4 but instead, limits his contention to the admission of Dr.

Basham’s testimony. Although Dale does acknowledge that the propriety of the admission

of evidence is governed by an abuse of discretion standard, Gee v. Liberty Mut. Ins. Co.,


       4
           Bridget’s exhibits 2 and 3 respectively.

                                                8
765 S.W.2d 394, 396 (Tex. 1989), he suggests that the application of Rule 193.6(a) of the

Texas Rules of Civil Procedure is a case of first impression. In its current form, Rule

193.6(a) excludes evidence not timely identified unless the court finds that:


       (1) there was good cause for the failure to timely make, amend, or
       supplement the discovery response; or
       (2) the failure to timely make, amend, or supplement the discovery response
       will not unfairly surprise or unfairly prejudice the other parties.5


The expert’s involvement was developed outside the presence of the jury. According to

the evidence, on March 12, 2002, the trial court appointed the expert for a psychological

examination of the parties and the order was approved by both counsel. Bridget’s attorney

requested the trial court take judicial notice of the file which contained the order appointing

the expert and his report. Among other things, the order directed that a detailed written

report of the evaluation by the expert be provided to all parties before March 30, 2002.

Although Dale designated Dr. Basham as a person with knowledge and potential witness,

Bridget did not list nor designate the expert on her supplemental designation. Out of the

presence of the jury, Bridget’s attorney argued that designation of the court ordered expert

was unnecessary or that it was unnecessary because Dale had designated the expert.

Further, he argued that because a copy of the report had been filed Dale was not

surprised. At the conclusion of the hearing, the trial court expressly found (1) good cause

was shown by the fact that Dale designated the expert; and (2) that the element of surprise


       5
       A finding of good cause or lack of unfair surprise or unfair prejudice must be
supported by the record. See Rule 193.6(b).

                                              9
was removed because Dale had designated the expert as a witness and the report was

part of the record.


       In Mares v. Ford Motor Co., 53 S.W.3d 416, 419 (Tex.App.--San Antonio 2001, no

pet.), in considering a somewhat similar question regarding Rule 193.6, the court

concluded that a discovery sanction is reviewed under an abuse of discretion standard and

that the reviewing court must determine whether the trial court’s action was arbitrary or

unreasonable. Given that Dale had actual notice6 of the expert’s opinion and the written

report several months before trial, had in fact designated the expert as a person with

knowledge, and the expert was of the opinion that (1) neither parent shows any likelihood

of being abusive or neglectful toward the children, and (2) both parents have a pattern of

close involvement with the children and appear to have provided adequate care for the

children, and (3) both children appear strongly attached to both parents, and considering

that the best interest of the children was of utmost importance, we conclude that the trial

court did not abuse its discretion in admitting Dr. Basham’s testimony. Issue three is

overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                                 Don H. Reavis
                                                   Justice


       6
       For purposes of pretrial procedure, the rules make no distinction in actual or
constructive notice. A. Copeland Enterprises, Inc. v. Tindall, 683 S.W.2d 596, 597
(Tex.App.--Fort Worth 1985, writ ref’d n.r.e).

                                            10
