









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-07-00013-CV
______________________________



IN RE:
JOHN M. STUCKEY, JR.






Original Prohibition Proceeding







Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss


MEMORANDUM  OPINION

	John M. Stuckey, Jr., seeks from this Court a writ of prohibition barring enforcement of a
judgment rendered (1) against Stuckey while his appeal from the trial court's earlier denial of Stuckey's
special appearance was pending in this Court. (2)  We deny Stuckey's petition.
	Because Stuckey's interlocutory appeal is pending, we have subject-matter jurisdiction to
consider this original proceeding and to issue a writ of prohibition requiring the trial court to refrain
from performing a future act.  See In re Yates, 193 S.W.3d 151, 152 (Tex. App.--Houston [1st Dist.]
2006, orig. proceeding); Lesikar v. Anthony, 750 S.W.2d 338, 339 (Tex. App.--Houston [1st Dist.]
1988, orig. proceeding).
	This Court has jurisdiction to issue writs of prohibition to protect its jurisdiction, including
preventing interference with a pending appeal.  Tex. Const.  art. V, § 6; Tex. Gov't Code Ann. §
22.221 (Vernon 2004).  A writ of prohibition has three functions:  preventing a lower court's
interference with an appellate court's jurisdiction over a pending appeal, preventing lower courts
from entertaining suits which will relitigate controversies which have already been settled by issuing
courts, and prohibiting a trial court's action when it affirmatively appears that the court lacks
jurisdiction.  Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex. 1989); McClelland v.
Partida, 818 S.W.2d 453 (Tex. App.--Corpus Christi 1991, orig proceeding); Tex. Capital Bank-Westwood v. Hon. Carolyn Johnson, 864 S.W.2d 186 (Tex. App.--Texarkana 1993, orig.
proceeding).  The relief requested falls into none of these categories.  The challenged action by the
trial court does not interfere with our ability to decide an appeal pending before us, relitigation is not
an issue, and the petition does not implicate the jurisdiction of the trial court over the proceeding.
	Further, as with mandamus, prohibition is not appropriate if any other remedy--such as
appeal or superseding the judgment--is available and adequate.  Holloway, 767 S.W.2d at 684; In
re Castle Tex. Prod. Ltd. P'ship, 189 S.W.3d 400, 404 (Tex. App.--Tyler 2006, orig. proceeding).
	We deny the petition for writ of prohibition.

							Josh R. Morriss, III
							Chief Justice

Date Submitted:	February 14, 2007
Date Decided:		February 15, 2007
1. The judgment made the subject of Stuckey's petition for writ of prohibition was rendered
January 8, 2007, by the Bowie County Court at Law, in cause number 01-C-1314-CCL.  That
judgment was rendered in favor of Dianna Sewell and David Sewell, in their capacities as co-executors of the estate of Norris W. Davis, deceased, and in their individual capacities, and was
against Stuckey in his individual capacity and in his capacity as executor of the estate of Emogene
Bedingfield Davis, deceased.
2. The underlying action alleged various types of malfeasance by Stuckey in estate proceedings. 
Stuckey's special appearance to contest personal jurisdiction was denied, and Stuckey appealed that
ruling to this Court.  Stuckey did not seek a stay of the proceedings from either the trial court or this
Court, and it is not clear whether any further action by the trial court was automatically stayed
pending  resolution  of  Stuckey's  interlocutory  appeal.   See  Tex.  Civ.  Prac.  &  Rem.  Code
Ann. § 51.014(b), (c) (Vernon Supp. 2006) (interlocutory appeal of special appearance ruling stays
some, not all, trial court proceedings).  The County Court at Law proceeded with trial of the
underlying case October 12, 2006, and signed a judgment January 8, 2007.

center">Fannin County, Texas
Trial Court No. 34878


                                                 



Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross


O P I N I O N

          Gary Wayne Jeffries and Tammy Rena Jeffries were married October 8, 1988, and
had one son, Jarod.  Around July 4, 2001, the couple separated, and Gary filed for divorce
December 3, 2001.  Tammy answered the suit and filed a counter-petition seeking divorce. 
Each of the parties asked to be appointed joint managing conservator with the exclusive
right to determine Jarod's primary residence.  
          Following a split two-day bench trial occurring February 14, 2003, and April 3, 2003,
the trial court granted a divorce between Gary and Tammy (on the ground of
insupportability), determined custody, and divided the marital estate.  Jarod was twelve
years old at the time of the divorce.  The final order grants joint managing conservatorship
over Jarod to both Gary and Tammy, with Jarod's primary residence being exclusively
established by Tammy.  The trial court ordered Gary to pay Tammy $700.00 per month for
child support until Jarod reaches eighteen years of age.
 The final decree also divides the
marital property between Gary and Tammy, and orders Gary to make a payment of
$15,000.00 to Tammy, secured by an owelty lien on Gary's separate property.  By two
issues, Gary appeals the order, contending the trial court abused its discretion (1) by
appointing Tammy primary joint managing conservator; and (2) by awarding Tammy the
$15,000.00 payment.  
I.        CONSERVATORSHIP
          As noted, the trial court granted joint managing conservatorship of Jarod to both
Gary and Tammy.  Tammy was granted the exclusive right to establish Jarod's primary
residence.  The trial court, in its findings of fact and conclusions of law, found it was in the
best interest of Jarod that Gary and Tammy be appointed joint managing conservators,
with Jarod being in the possession of Tammy, except during the periods set forth in the
standard possession order.  The possession order provides for extended possession by
Gary.  Gary contends the trial court erred because Tammy's conduct and living standards
are such that she is unfit to be Jarod's primary managing conservator.  
          In determining issues of conservatorship and possession of a child, the primary
consideration of the court is the best interest of the child.  See Tex. Fam. Code Ann.
§ 153.002 (Vernon 2002).  The trial court is given wide latitude in determining the best
interests of the children and will be reversed only for abuse of discretion.  Gillespie v.
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).  A trial court abuses its discretion only when
it has acted in an unreasonable or arbitrary manner, or when it acts without reference to
any guiding principle.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985).  We may not reverse for abuse of discretion merely because we disagree with
a decision of the trial court.  Id. at 242.  
          In Texas, there is a rebuttable presumption that the appointment of parents as joint
managing conservators is in the best interest of the child.  Tex. Fam. Code Ann.
§ 153.131(b) (Vernon 2002); Martinez v. Molinar, 953 S.W.2d 399, 402 (Tex.
App.—El Paso 1997, no writ).  Once a court has appointed joint managing conservators,
the court is required to designate which parent has the exclusive right to determine the
primary residence of the child.  Tex. Fam. Code Ann. § 153.134(b)(1) (Vernon Supp.
2004–2005).  The matter of determining who should be appointed managing conservator
is left to the sound discretion of the trial court.  Martinez, 953 S.W.2d at 403; Altamirano
v. Altamirano, 591 S.W.2d 336, 338 (Tex. Civ. App.—Corpus Christi 1979, no writ).  The
trial court is in a better position to determine what will be in the best interest of the child
since it faced the parties and their witnesses, observed their demeanor, and had the
opportunity to evaluate the claims made by each parent.  Martinez, 953 S.W.2d at 403. 
Its judgment will not be disturbed on appeal unless there has been a clear abuse of
discretion. 
          When there is some evidence of a substantive and probative character to support
the trial court's decision, no abuse of discretion occurs.  Limbaugh v. Limbaugh, 71 S.W.3d
1, 14 (Tex. App.—Waco 2002, no pet.).  The determination of conservatorship issues is
guided by the best interest of the child and is "intensely fact driven."  Lenz v. Lenz, 79
S.W.3d 10, 19 (Tex. 2002). 
          Gary contends there is ample evidence to show that Tammy is unfit to be the
primary conservator of their child.  He first cites evidence Tammy is an admitted drug
addict.  Tammy testified she has had a problem with drugs and was once addicted to pain
medication.  She testified that, while she was living with Gary, she had a drug problem and
that she probably drove on occasion while under the influence of drugs.  Duanne Bragg,
appointed by the court to conduct a social study, testified she learned, through her
investigation, of an incident where Tammy, while transporting Jarod and another child,
stopped her vehicle at a roadside park and went to sleep.  Bragg also testified there have
been allegations Tammy continues to use drugs.  Tammy testified, however, that after
leaving Gary she checked herself into a rehabilitation facility and has not taken pain
medication since July 4.
  Tammy testified Gary is currently on potent pain medication and
is unable to properly care for Jarod.  She testified that, when she lived with Gary, "he laid
in the bed 24/7, smoked cigarettes and drank Dr. Peppers, . . . ."  Gary testified he is on
various prescription pain medications in connection with neck fusion surgery he underwent.
          Gary also contends the trial court ignored the evidence of instability in Tammy's life
when it appointed her primary managing conservator.  Gary points out that Tammy has
been fired from several jobs.  Tammy is, however, the only parent currently employed.  She
works at CIGNA Health Care earning $9.60 an hour.  Gary is currently unemployed and
on disability from spinal surgery.  
          Gary further points out that Tammy dated a man after the separation, and allowed
him to live with her and Jarod for a short period of time.  Gary too, however, has been living
with his girlfriend for several months, and Bragg testified that, when Gary has Jarod, his
girlfriend takes care of transporting him to school.  Tammy testified she was Jarod's
primary caretaker.  She testified she took care of him, took him to his baseball games,
school, and anywhere he needed to go.  
          Finally, Gary contends the trial court abused its discretion by failing to consider
Bragg's recommendations.  On the first day of trial, February 14, 2003, Bragg testified
about the social study the court appointed her to conduct.  She concluded in her study that
Jarod needed to stay with Gary.  Bragg cited as major concerns allegations that Tammy
was continuing to use drugs and that she has a live-in boyfriend.  She testified that, after
Jarod stays with his mother, he is more hyper, more argumentative, and
nonresponsive—but after he stays with his father, he calms down.  Bragg concluded Jarod
would have a more stable life with his father than he would with his mother.  
          Jarod initially signed and filed a preference to live with his father, but later expressed
to the trial court, in chambers, his desire to live with his mother.  Bragg testified Jarod does
not want to disappoint his mother, and that may have influenced his decision to change his
living preference to his mother.  Bragg went on to state Jarod loves both his parents and
has a good relationship with each.   
          Patti Andrews, a licensed professional counselor, testified about her counseling
sessions with Jarod.  Andrews testified Jarod has consistently told her he wants to live with
his mother.  She testified both parents love Jarod, and there is nothing about Tammy that
would make her unfit to care for Jarod.  
          The evidence in this case was conflicting as to which parent should determine
Jarod's primary place of residence.  Jarod's wishes were to be placed with his mother.  See
Tex. Fam. Code Ann. § 153.009(b) (Vernon 2002) (authorizing consideration of child's
desires).  A trial court does not abuse its discretion when it makes a decision on conflicting
evidence.  See Kirkpatrick v. Mem'l Hosp., 862 S.W.2d 762, 776 (Tex. App.—Dallas 1993,
writ denied).  Based on the conflicting testimony, we conclude the trial court did not abuse
its discretion by appointing Tammy joint managing conservator with the exclusive right to
establish Jarod's primary residence.  The trial court was in a better position to determine
what will be in the best interest of Jarod since it faced the parties and their witnesses,
observed their demeanor, and had the opportunity to evaluate the claims made by each
parent.  See Altamirano, 591 S.W.2d at 338.  Accordingly, we overrule Gary's first point of
error.  
II.       DIVISION OF PROPERTY
          Gary also complains of the $15,000.00 payment he was ordered to make to Tammy
and of the owelty lien impressed on his residence to secure that payment.  The Family
Code requires the trial court to order a division of the estate in a manner the court deems
just and right, having due regard for the rights of each party.  Tex. Fam. Code Ann. § 7.001
(Vernon 1998).  The trial court is afforded wide discretion in dividing the marital estate, and
its decision will not be disturbed absent a clear abuse of that discretion.  Schlueter v.
Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Jacobs v. Jacobs, 687 S.W.2d 731, 733
(Tex. 1985).  A trial court does not abuse its discretion if there is some evidence of a
substantive and probative character to support the decision.  Powell v. Swanson, 893
S.W.2d 161, 163 (Tex. App.—Houston [1st Dist.] 1995, no writ); Stout v. Christian, 593
S.W.2d 146, 151 (Tex. Civ. App.—Austin 1980, no writ). 
          The property divided among the parties (as shown by the judgment and findings of
fact) is as follows:
Assets                               Husband                           Wife
Community Property          $46, 526                             $11,432
Equalization for separate 
property house                                                                15,000


1/2 (each) of Husband's
          Retirement              ????                                   ????
 
          Totals                     $46,526 + 1/2 Ret.             $26,432 + 1/2 Ret.


 
Debts:                                $65,994.62
                         –0–
 
net to each party:   –$19,468.62 (+ 1/2 ret)        $26,432 + 1/2 retirement 

          The record shows the community paid over $34,000.00 on the mortgage.  It is clear
that the $15,000.00 award is supportable as a return to the community for the economic
benefit to Gary's separate property because of those payments.  See Tex. Fam. Code Ann.
§§ 3.401–.406 (Vernon Supp. 2004–2005).
          That does not, however, necessarily mean the overall division of property is
supportable.  We have reviewed the record, and it is entirely clear, as acknowledged by
the judgment, the home equity loan was taken out by the parties as a community loan,
although it was then secured by Gary's separate property house.
          In dividing the property, the debt load created by that loan was not considered.  No
findings about that award were made in the findings of fact or conclusions of law, but the
judgment assessed the entirety of the debt solely against Gary.  As a result of the failure
to consider that debt, the net value of the community awarded to Gary was reduced to
nearly a negative $20,000.00, while Tammy remained with a positive $26,432.00.  We
recognize that the failure of the findings and judgment to provide any information about the
value of Gary's retirement account will adjust that award, but with both parties receiving
one half of its value, the mathematical difference between the amounts awarded should
remain unaltered.  
          In this case, the court ordered Gary to assume a community debt that far exceeded
any other debt of the estate.  Because such a debt is a legally relevant factor in dividing
the community estate, a court may abuse its discretion if it fails to consider such a factor. 
See Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981) (spouse's debt as factor in property
division).  The trial court, in exercising its discretion, may consider many factors, including
the parties' earning capacities, education, business opportunities, physical condition,
financial condition, age, size of separate estates, nature of the property, and the benefits
the spouse who did not cause the breakup of the marriage would have enjoyed had the
marriage continued.  Id.; Walston v. Walston, 971 S.W.2d 687, 691 (Tex. App.—Waco
1998, pet. denied).
          Although the trial court does not have to divide the community property equally, its
division must be equitable.  Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.—Houston
[14th Dist.] 1996, no writ); Schuster v. Schuster, 690 S.W.2d 644, 645 (Tex. App.—Austin
1985, no writ).  That means that, although the court need not divide the community estate
equally, a disproportionate division must be supported by some reasonable basis.  Smith
v. Smith, No. 10-00-00409-CV, 2004 WL 1418630, at *5 (Tex. App.—Waco June 23, 
2004, no pet. h.); Archambault v. Archambault, 763 S.W.2d 50, 51 (Tex. App.—Beaumont
1989, no writ).  
          We review the trial court's division of property using an abuse of discretion standard. 
Murff, 615 S.W.2d at 700; Walston, 971 S.W.2d at 691.  Legal and factual sufficiency are
not independent grounds of error, but relevant factors in assessing whether the trial court
abused its discretion.  O'Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex. App.—Austin 2002,
no pet.).  To constitute an abuse of discretion, the property division must be manifestly
unfair.  See Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980). 
          We have reviewed the record.  Although it is true that Gary's separate property is
the most valuable asset shown by either party, there is evidence from which it could be
concluded that it is also encumbered to between seventy and eighty percent of its
appraised value, and that the loan proceeds benefited the community.  The result of this
division is to not merely create a disproportionate division of the estate, but to value one
estate at a negative $20,000.00, while leaving the other $26,000.00 in the black.  We find
no reasonable basis for the disproportionate division of community assets and liabilities of
the parties, and none was suggested by counsel during trial or on appeal.  Gary's second
point of error is sustained.
III.      CONCLUSION
          We affirm the judgment as to its determination of conservatorship of the child.  We
reverse the judgment as to the property division, dissolve the owelty lien, and remand the
case for a redetermination of the division of the property in light of this opinion.
 

 
                                                                           Donald R. Ross
                                                                           Justice

Date Submitted:      July 23, 2004
Date Decided:         August 31, 2004
