Opinion filed May 14, 2009




                                              In The


   Eleventh Court of Appeals
                                           ___________

                                    No. 11-07-00255-CV
                                        __________

                      IN THE INTEREST OF B.R.P., A CHILD


                             On Appeal from the 326th District Court

                                      Taylor County, Texas

                                 Trial Court Cause No. 37992-C


                             MEMORANDUM OPINION

       This is an appeal from the trial court’s order on the conservatorship of B.R.P. The trial court
entered its final decree of divorce for Tracey Jean Perkins and Ronald Edward Perkins on May 14,
2007. The trial court appointed Tracey and Ronald joint managing conservators of B.R.P. and
awarded Ronald the right to designate the child’s primary residence. We affirm.
       In her sole issue on appeal, Tracey argues that the trial court abused its discretion in
appointing Ronald as a joint managing conservator. The trial court’s determination of
conservatorship is reviewed for abuse of discretion. Naguib v. Naguib, 137 S.W.3d 367, 370 (Tex.
App.—Dallas 2004, pet. denied). A court abuses its discretion when it acts without reference to any
guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985). A trial court’s determination of the best interest of the child will only be reversed upon a
determination of an abuse of discretion because the trial court is in the best situation to observe the
demeanor and personalities of the witnesses. Naguib, 137 S.W.3d at 371.
        The Texas Family Code establishes a rebuttable presumption that the appointment of the
parents of a child as joint managing conservators is in the best interest of the child. TEX . FAM . CODE
ANN . § 153.131(b) (Vernon 2008). However, TEX . FAM . CODE ANN . § 153.004 (Vernon 2008)
provides:
                 (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.... 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.

Tracey argues that there was credible evidence of Ronald’s acts of family violence within the two
years preceding the filing of the suit.
        Ronald and Tracey were married in October 1992. Tracey had two sons, Steven and Chris,
from previous relationships. B.R.P. was born June 3, 1997. Tracey testified that Ronald can be
physically and verbally abusive. She testified that, on one occasion, he knocked her son, Steven,
to the ground. However, Steven was twenty years old at the time. Tracey further testified that
Ronald “backhanded” Chris for not picking up his clothes. Tracey stated that Ronald jerked B.R.P.
by her arm when B.R.P. would not pick up her toys. She also stated that Ronald had B.R.P. stand
in the corner for punishment and that B.R.P. started crying. Ronald took off his belt and hit the filing
cabinet with the belt, telling B.R.P. that he would “give [her] a reason to cry.”
        Chris testified that he had lived with Ronald for thirteen or fourteen years. Chris stated that
Ronald had been physically aggressive with him at times and had backhanded him and cussed at him.


                                                   2
Chris said that Ronald did not use profane language with B.R.P. Chris acknowledged that Ronald
did not “pick on him” without reason but disciplined him as a father.
       Ronald testified and acknowledged physical discipline of the children. Ronald stated that
both he and Tracey spanked the children with a wooden paddle. Ronald admitted losing his temper
with Chris and slapping Chris in the face. Ronald further admitted spanking Steven with a spark
plug wire and backhanding Steven.
       Steven testified at trial that Tracey usually worked nights and that Ronald took care of him,
his brother, and B.R.P. Steven stated that B.R.P. should live with Ronald in the Abilene area.
Danielle Star had known Ronald and Tracey for twelve years. Danielle testified that Ronald was a
good father to all three children. Danielle further testified that the children were well-behaved and
treated Ronald with respect. Danielle stated that it would be best for B.R.P. to live with Ronald.
Julie Brisco, Tracey’s friend, also testified that it would be best for B.R.P. to live with Ronald.
       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. Section 153.004(b). 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. TEX . FAM . CODE ANN . § 71.004(1) (Vernon 2008).
Family violence is also abuse by a member of a family toward a child of the family. TEX . FAM . CODE
ANN . § 71.004(2) (Vernon 2008). 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. TEX . FAM . CODE
ANN . § 261.001(1)(A), (C) (Vernon 2008); Stucki v. Stucki, 222 S.W.3d 116, 123 (Tex. App.—Tyler
2006, no pet.).
       Ronald acknowledged spanking Steven with a spark plug wire; however, the record does not
indicate that that incident occurred within two years from the filing of the suit. Moreover, Steven
did not testify that Ronald abused him or any of the children. See Stucki, 222 S.W.3d at 124. Ronald
further acknowledged losing his temper with Chris and slapping Chris in the face. There was


                                                  3
testimony that Chris had a red mark on his face for two days, but Ronald does not recall leaving a
mark on Chris. There was conflicting evidence on whether Chris suffered a physical injury, and the
evidence does not show that the slap resulted in substantial harm to Chris. Id. The record shows that
Tracey left Chris with Ronald when she moved to Las Vegas, Nevada, indicating that she did not fear
for his safety while living with Ronald. See Hinkle v. Hinkle, 223 S.W.3d 773, 782 (Tex.
App.—Dallas 2007, no pet.).
       There is no evidence that Ronald abused B.R.P. or that B.R.P. suffered any physical injury
resulting in substantial harm. Stucki, 222 S.W.3d at 124. Again, Tracey left B.R.P. in Ronald’s care
when she worked in Fort Worth, and she allowed B.R.P. to live with Ronald while she moved to Las
Vegas. See Hinkle, 223 S.W.3d at 782. The record shows that Ronald used physical force in
disciplining the children, but the record does not support a finding of a history or pattern of physical
abuse. The record shows that Ronald hit Tracey on one occasion; however, that was prior to their
marriage and does not support a finding of a history or pattern of abuse under the statute. There was
no protective order rendered against Ronald during the marriage or during the pendency of the suit.
See Stucki, 222 S.W.3d at 123. We cannot conclude from the record before us that the trial court
abused its discretion in appointing Ronald as joint managing conservator with the right to establish
the primary residence of B.R.P. Tracey’s sole issue on appeal is overruled.
       The judgment of the trial court is affirmed.




                                                               JIM R. WRIGHT
                                                               CHIEF JUSTICE


May 14, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




                                                   4
