Opinion filed April 14, 2011




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-09-00257-CV
                                        __________


                       RACHEL MARIE STEWART, Appellant

                                                V.

                       JASON WILLIAM STEWART, Appellee



                          On Appeal from the County Court at Law

                                      Nolan County, Texas

                                Trial Court Cause No. CC-5839


                               MEMORANDUM OPINION
       This is a divorce proceeding. The trial court granted Jason William Stewart and Rachel
Marie Stewart a divorce, named them joint managing conservators of their three children, gave
Jason the exclusive right to designate the children’s residence, and divided the couple’s property.
Rachel filed this appeal, complaining of the trial court’s conservatorship ruling and property
division. We affirm.
                                            I. Facts
       This was a contentious proceeding with both parties concentrating primarily on their
criticisms of the other. There was evidence that Rachel was guilty of financial mismanagement
before and during the marriage. Before the marriage, Jason paid some of her bills; she applied
for phone service under her three-year-old son’s name (he was from a prior relationship); and tax
liens were filed against her. These liens still have not been paid. Rachel admitted writing
several hot checks during the marriage. Jason testified that he has spent $100,000 covering those
checks. When Jason filed for divorce, the parties separated. During their separation, Rachel
failed to make the house payment, resulting in a default, and she also failed to pay for day care.
Rachel testified that she thought Jason had made the January house payment and that she did not
know the February payment was due. She acknowledged, however, that the statements were sent
to her. During the separation and despite the fact that she was earning only $8.00 an hour and
the parties had considerable outstanding debts, she traveled to Las Vegas, the Fort Worth Stock
Show, the San Antonio Stock Show, the Houston Stock Show, and the San Angelo Stock Show.
She also paid someone $600 a month to wash, feed, and handle her steers, and she renovated a
bathroom in the house.
       There was testimony of infidelity and alcohol abuse by both parties. During a birthday
party for her at Mi Ranchito Restaurant, Rachel became extremely intoxicated. A band was
playing at the restaurant, and Rachel ended up passed out in the backseat of a band member’s
pickup. On another occasion, she and Jason went to the Scurry County Christmas Ball. The
same band was playing. She became severely intoxicated, and after the ball, she went to a hotel
with the band and ended up in a bathroom with a band member. A third episode occurred at the
ranch rodeo. Rachel became intoxicated and told Jason to go away because she was leaving with
the band. Jason went home and packed some clothes. According to him, Rachel brought the
children to him the next day so that she could sleep off a hangover. A mutual friend of the
parties witnessed her assault Jason and cause problems for himself and his ex-wife at a restaurant
while intoxicated.
       At the time of trial, Rachel was having an affair with a married man, Robert Butchee. A
few months before the divorce, Rachel went to Lamesa, where Butchee lived, to purchase show
pigs. She should have returned between 9:30 and 10:00 in the evening, but she did not arrive
until after midnight. When she did, she was highly intoxicated. There was a twenty-pack of

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Miller Lite beer in her vehicle, and according to Jason, 75% of the bottles were empty. Miller
Lite is the type of beer that Butchee drinks. Rachel admitted that she met with Butchee at the
Houston Stock Show and that he provided her with money for her trips.
       There was also evidence critical of Jason. He admitted to drinking beer while driving
with the kids in his vehicle. Prior to this divorce action, the parties had filed for divorce and
were separated. Jason admitted that, during this period of time, he had an affair with one woman
and slept with another. He also admitted that, a few days before their originally scheduled
divorce hearing, Rachel caught him looking at pornography on the internet. Rachel denied that
this was a remote event and contended that it happened much more recently.
       The court had other evidence of bad acts by both parents. Rachel did not attend her
grandmother’s funeral because she was at the National Finals Rodeo in Las Vegas. The date of
the funeral was changed while she was out of town, but she knew that her grandmother had
passed away before leaving town. Rachel has interfered with the relationship between her oldest
son and his father and has been chastised by the trial court for doing so. On one occasion when
the trial court ordered her to allow the father access to his son, she told him to be the biggest brat
he had ever been. She has told the children that Jason did not love them and has cussed him out
in their presence.
       The children’s family physician described Jason as temperamental and said that he loses
his temper easily. He has heard Jason raise his voice with the children and, in fact, has never had
anyone else act as poorly as Jason did with the children in his office. Jason has written several
checks when there were insufficient funds in his checking account.            He incurred $575 in
insufficient funds fees one month and $925 the next. Once, while Rachel was driving on the
interstate, he turned her car off. He admitted to striking her in the face once and to forging her
name on a bank note. Rachel testified that he has bruised the children by spanking them and that
he has called her horrible names in front of them.
                                                 II. Issues
       Rachel challenges the trial court’s judgment with two issues. She contends that the trial
court abused its discretion by giving Jason the exclusive right to designate the children’s
residence because its decision was based on legally and factually insufficient evidence and that it
also abused its discretion by failing to consider the tax consequences of awarding her wind
energy royalty income that had been pledged to pay a community debt.

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                                         III. Standard of Review
       We review a trial court’s decision on custody, control, possession, and visitation matters
as well as division of the community estate for abuse of discretion and reverse the trial court’s
order only if we determine from reviewing the record as a whole that the trial court abused its
discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its
discretion only if it acts arbitrarily or unreasonably, without reference to any guiding rules or
principles. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
       Under an abuse of discretion standard, legal and factual sufficiency challenges to the
evidence are not independent grounds of error but are relevant factors in assessing whether the
trial court abused its discretion. Child v. Leverton, 210 S.W.3d 694, 696 (Tex. App.—Eastland
2006, no pet.). When, as here, the appellant contends the abuse of discretion results from
insufficient evidence, we engage in a two-pronged inquiry: (1) whether the trial court had
sufficient information on which to exercise its discretion and (2) whether the trial court erred in
its application of discretion. Id. The traditional sufficiency review comes into play with regard
to the first question; however, the inquiry does not end there. We then proceed to determine
whether, based on the evidence, the trial court made a reasonable decision. Id.
       In a legal sufficiency review, we view the evidence in a light favorable to the finding,
crediting favorable evidence if a reasonable factfinder could do so and disregarding contrary
evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex. 2005). The evidence is legally sufficient if it would enable reasonable and fair-minded
people to reach the verdict under review. Id. at 827-28. We may sustain a no-evidence challenge
only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is
barred by rules of law or evidence from giving weight to the only evidence offered to prove a
vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or
(4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810. In reviewing the
factual sufficiency of the evidence, we examine all of the evidence and set aside a finding only if
it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
       The best interest of the child is the primary consideration in determining issues of
conservatorship. TEX. FAM. CODE ANN. § 153.002 (Vernon 2008); In re V.L.K., 24 S.W.3d 338,
342 (Tex. 2000). Because the trial court faces the parties, observes their demeanor, and has an

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opportunity to evaluate the claims made by each parent, the trial court has wide latitude in
determining the child’s best interest.       Gillespie, 644 S.W.2d at 451.        When addressing
conservatorship issues, courts may use the non-exhaustive list of Holley factors to determine the
child’s best interest. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The Holley
factors include the following: (1) the desires of the child, (2) the emotional and physical needs
of the child now and in the future, (3) the emotional and physical danger to the child now and in
the future, (4) parental abilities of the individuals involved, (5) programs available to those
individuals to promote the best interest of the child, (6) plans for the child by these individuals,
(7) stability of the home or proposed placement, (8) acts or omissions of the parent that may
indicate that the existing parent-child relationship is not proper, and (9) any excuse for the acts or
omissions of the parent. Id.
                      IV. The Right to Designate the Children’s Primary Residence
       Rachel argues that, when the trial court decided to give Jason the right to designate the
children’s primary residence, it had insufficient evidence upon which to inform its exercise of
discretion. The trial court made a number of findings of fact in connection with this decision.
Specifically, the court found:
             a. Jason William Stewart can best provide for the physical, psychological
       and emotional needs of the children.

              b. The incidents of Rachel Marie Stewart’s alcohol use pose a potential
        physical danger to the children now and in the future.

               c. The stability of Jason William Stewart’s home is marginally better than
        that of Rachel Marie Stewart.

               d. Jason William Stewart has demonstrated a greater ability to give the
        children first priority.

               e. Neither Jason William Stewart nor Rachel Marie Stewart have the
        ability to reach shared decisions in the best interest of the children.

              f. Jason William Stewart and Rachel Marie Stewart have both engaged in
        corporal punishment and exhibit tendencies to anger quickly.

               g. Jason William Stewart and Rachel Marie Stewart have both, at one
        time or another, been the primary caregiver for the children in the absence of the
        other parent.



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              h. No evidence was presented to rebut the presumption that the siblings
       should not be separated.

               i. Neither Jason William Stewart nor Rachel Marie Stewart presented
       credible evidence of their stability to promote a positive relationship between the
       children and the other party.

              j. There have been instances of family violence, involving the use of
       abusive physical force between the parents, if not in the presence of, then in the
       immediate proximity of the children.

              k. Rachel Marie Stewart’s continued abuse of alcohol denotes an ongoing
       alcohol problem that relates to the Respondent’s fitness to act as a parent.

               l. Rachel Marie Stewart had an (extramarital) affair with a married
       individual during the time of the marriage and continuing during the period of
       separation.

               m. Rachel Marie Stewart has engaged in conduct denying and/or
       interfering with the parenting time provided to the father of her older child who is
       not the subject of this suit.

       Rachel challenges several of these findings. For example, she acknowledges that there
was evidence of alcohol abuse but points out that none of the events occurred around the children
and that Jason admitted to drinking a beer while driving with the children. However, there was
evidence that at least one of the children was present at Rachel’s birthday party while she was
drinking tequila straight from the bottle.     Furthermore, Jason testified that Rachel, while
intoxicated, drove with the children on three or four occasions. The trial court could find this
testimony credible. But even if the children did not actually witness Rachel while intoxicated or
ride with her while she was impaired, the events evidencing her alcohol abuse were so dramatic
as to provide the trial court with cause for concern. Jason’s admission that he drank beer while
driving with the children is also disconcerting, but the trial court could draw a distinction
between it and Rachel’s alcohol abuse because of the lack of evidence that Jason was ever
impaired.
       Rachel also challenges the trial court’s finding that Jason’s home was marginally more
stable than hers, and she complains that this finding is unclear. We note first that Rachel did not
request additional findings and, therefore, has not preserved any complaint about the clarity of
this finding. Moreover, the trial court had sufficient evidence upon which to make this finding.


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In addition to the alcohol abuse and financial mismanagement evidence, the court had evidence
that Rachel was unable to maintain constant employment. She held a number of different jobs
during the marriage, was unemployed for eight months, and eventually went to work for EON
adjusting land damage. She was fired from that job and, at the time of trial, was working as a
receptionist. She was earning $8.00 an hour but had taken off ―quite a bit‖ from work. Finally,
she was involved in an affair with a married man.
       Rachel next challenges the trial court’s finding that Jason demonstrated a greater ability
to make the children his first priority. Rachel assumes that this finding was the result of her
failure to attend her grandmother’s funeral. If so, she notes that the date of the funeral was
changed after she left town and that the children were taken care of in her absence. The parties
were separated, and Rachel left the children with Jason. The trial court could consider that
Rachel knew her grandmother had passed away before she left town but that she chose to go to
the National Finals Rodeo nonetheless – even though she lacked the financial resources to make
such a trip. The trial court could also consider that Rachel applied for credit in her three-year-old
son’s name and that, while the parties were separated, she made several trips to stock shows
without the children. Rachel’s absences, her decision to go to Las Vegas, and her spending
money that she did not have could all reasonably be considered by the trial court as evidence of
her priorities. If so, the trial court’s finding has adequate support.
       The trial court found that Rachel had an affair with a married man both during the
marriage and during the parties’ separation. Rachel does not dispute this finding but points out
that Jason had two affairs and that he was looking at internet pornography while she was
pregnant. Jason testified that his two affairs and his internet pornography viewing occurred
during the parties’ first separation. Rachel disputed Jason’s testimony and contended that he has
looked at pornography much more recently, but the trial court could reasonably find Jason’s
testimony more credible. The trial court could also distinguish between an affair during a period
of separation and one that started during the marriage.
       Finally, Rachel challenges the sufficiency of the evidence that she interfered with her
oldest son’s visitation with his father. Rachel admitted that she had been to court several times
over visitation issues concerning her son, that she had been reluctant to promote a relationship
between her son and his father, and that she had been chastised for not allowing visitation. Jason
testified that Rachel had denied the father access and that the trial court had ordered her to

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provide him with access. Jason also testified that, after that hearing, Rachel told her son to throw
a fit when he did not get his way. This evidence is sufficient to support the trial court’s finding.
         Between the undisputed evidence and the conflicting evidence that could be resolved in
Jason’s favor, the trial court had sufficient evidence upon which to make each of the challenged
findings of fact. Collectively, the findings sufficiently informed the trial court’s exercise of its
discretion. Issue One is, therefore, overruled.
                                                   V. Wind Energy Royalty
         Rachel complains that the trial court abused its discretion by dividing the community
property because she was awarded one-half of the wind royalty income. Her complaint is that,
because the royalty is pledged to secure a mortgage, she does not actually receive it but is still
taxed on it. Rachel contends that the trial court failed to appreciate the tax consequences of its
division and that this division could result in an inequitable property division.
         Texas law requires trial courts to divide the estate of the parties in a manner that is just
and right, having due regard for the rights of each party. TEX. FAM. CODE ANN. § 7.001 (Vernon
2006). There is no requirement that the court effectuate an equal division. Murff v. Murff, 615
S.W.2d 696, 699 (Tex. 1981). In reviewing the equitable remedy fashioned by the trial court, we
must determine not only whether the trial court’s findings are supported by the evidence, but also
whether error, if established, caused the trial court to abuse its discretion. Garcia v. Garcia, 170
S.W.3d 644, 649 (Tex. App.—El Paso 2005, no pet.). We must indulge every reasonable
presumption in favor of the trial court’s proper exercise of its discretion in dividing marital
property. Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App.—Fort Worth 1999, pet. denied).
         The initial concern Rachel’s argument presents is her criticism of the trial court for not
considering evidence she did not offer. There was testimony about the parties’ liability for past
taxes, but neither party offered the trial court any tax consequence evidence. Consequently, we
do not know what the tax consequences to her will be or how they affect the division of the
marital estate. Second, because Jason will have the same imputed income, the record does not
reflect disparate treatment. Third, Rachel herself testified that she was aware the royalty income
was pledged. She then asked the court to split that income. Consequently, she is complaining of
an award that she requested.1

          1
            We note that the wind royalty income is pledged to pay an indebtedness on farm land and that Rachel also asked for
one of the parties’ two farm tracts. Her request for one-half of the royalty income was not conditioned upon receipt of a farm
tract.

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       Finally, Rachel offers no suggestion for what the trial court should have done beyond
consider the tax consequences of the wind royalty award. The parties had assets totaling
$1,514,388 and liabilities totaling $1,470,425.50. Jason received an estate with a negative net
equity (-$8,357.50). Rachel received an estate with a positive net equity ($52,320). The wind
royalty is pledged to pay a mortgage on land Jason is receiving, but he is also responsible for the
majority of the parties’ debt, including past taxes of $56,626. The trial court treated Rachel’s
share of the pledged royalty income, $60,909.50, as a contribution to the parties’ general
unsecured debt but made Jason primarily responsible for that debt. Because Rachel is receiving
a disproportionate share of the marital estate and is primarily responsible for less than 15% of
their debt, we cannot conclude that the trial court abused its discretion by awarding her one-half
of the wind royalty. Issue Two is overruled.
                                              VI. Conclusion
       The judgment of the trial court is affirmed.




                                                     RICK STRANGE
                                                     JUSTICE


April 14, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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