                                   NO. 07-09-0353-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                   JULY 26, 2011
                          ______________________________


                           MICKIE JO BLOUNT, APPELLANT

                                             V.

                       NATHAN BRADLEY BLOUNT, APPELLEE


                        _________________________________

                FROM THE 50TH DISTRICT COURT OF KING COUNTY;

            NO. 2009-638; HONORABLE WILLIAM "BILL" HEATLY, JUDGE

                         _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, Mickie Jo Blount, presents three issues challenging the Final Decree

of Divorce entered by the trial court in her suit against Appellee, Nathan Bradley Blount.

Specifically, Appellant maintains (1) the trial court erred in including objected-to items in

the decree which were not plead or tried by consent and which were not supported by

the evidence, specifically a visitation restriction pertaining to the maternal grandmother,

(2) the trial court admitted irrelevant testimony regarding the character of the maternal
grandmother as it relates to the "best interest" finding, and (3) her right to a fair and

impartial judge was violated by several instances of judicial misconduct. We affirm.


                                            Background


        Appellant and Appellee were married in June 2002 and ceased living together as

husband and wife on March 28, 2009. They are the parents of two minor children born

in 2001 and 2006. On April 27, 2009, Appellant filed for divorce in King County. She

plead for joint managing conservatorship of the children and requested the exclusive

right to designate their primary residence. Following a hearing and presentation of

evidence in Cottle County, the trial court signed the final decree of divorce on

September 15, 2009, which named Appellant and Appellee as joint managing

conservators with Appellee having the exclusive right to designate the primary

residence of the children. Appellant was granted standard visitation and ordered to pay

child support. Additionally, the trial court found that it was in the best interest of the

children to have contact with the maternal grandmother only in the presence of

Appellant.    As requested by Appellant, the trial court signed Findings of Fact and

Conclusions of Law. Appellant filed a Motion for New Trial which was overruled by

operation of law.

I. Issue One

        By her first issue,1 Appellant challenges the trial court's finding of fact that "[i]t is

in the best interest of the minor children for all contact of the maternal grandmother with

1
 From the Issues Presented portion of the brief to the Summary of Argument, and finally to the Arguments
and Authorities section, Appellant strays from her propositions and this Court strains to discern her
                                                     2
the minor children be while they are in the presence of the Petitioner, Mickie Jo

Blount."2    Appellant also challenges the trial court's finding that "[t]he periods of

possession comply with the Standard Possession Order."3 She argues that the first

finding creates a deviation from the Standard Possession Order which infringes on her

visitation rights. By this same multifarious issue, Appellant further challenges the trial

court's award to Appellee as his separate property, "[a]ll clothing and personal

possessions of the minor children . . . ." We disagree with Appellant's contentions.


        A. Standard of Review--Standard Possession Order


        We give wide latitude to a trial court's determinations on possession and

visitation issues, reversing the court's decision only for abuse of discretion. Gillespie v.

Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion when it

acts arbitrarily or unreasonably, without reference to any guiding rules or principles.

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). The best interest of a minor

child shall always be the primary consideration of the trial court in determining issues of

conservatorship. Tex. Fam. Code Ann. § 153.002 (West 2008). The trial court is the

sole judge of the weight and credibility of the evidence. Coleman v. Coleman, 109

S.W.3d 108, 111 (Tex.App.--Austin 2003, no pet.). The trial court is in a better position

contentions. Additionally, Appellant's issues are multifarious, her briefing is difficult to decipher, and
some of her arguments are incomprehensible.
2
 Throughout her analysis under issue one, Appellant mischaracterizes the trial court's Findings of Fact as
Conclusions of Law which, she argues, require reversal under a de novo standard of review. To the
contrary, Findings of Fact have the same force and dignity of a jury's verdict upon questions and are
reviewed the same as a jury's verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.
1991).
3
 A Standard Possession Order is one that complies with chapter 153, subchapter F of the Texas Family
Code.
                                                 3
than an appellate court to determine the best interest factor because the trial court

observed the parties and witnesses, noted their demeanor and had the opportunity to

evaluate their claims. Stucki v. Stucki, 222 S.W.3d 116, 124 (Tex.App.--Tyler 2006, no

pet.).


               1. Analysis


         There is a rebuttable presumption that the standard possession order (1)

provides reasonable minimum possession of a child for a parent named as a

possessory conservator or joint managing conservator and (2) is in the best interest of a

child. Tex. Fam. Code Ann. § 153.252 (West 2008). Appellant asserts that the trial

court's restriction on the maternal grandmother's visitation is a variance from the

Standard Possession Order. Appellee urges that Appellant failed to make a written and

timely request for the trial court to "state in the order the specific reasons for the

variance from the standard order." See id. at § 153.258. See also In the Interest of

T.J.S., 71 S.W.3d 452, 458-59 (Tex.App.--Waco 2002, pet. denied).


         Notwithstanding Appellant's contention that the trial court deviated from the

Standard Possession Order and Appellee's argument that Appellant failed to make a

timely request for specific reasons under section 153.258, this Court does not interpret

the restriction on the maternal grandmother's visitation with the minor children as a

variance from Appellant's possessory rights under the Standard Possession Order. The

restriction does not limit Appellant's periods of possession under the Standard

Possession Order. Furthermore, a close examination of the divorce decree reveals that

                                            4
the paragraph limiting the maternal grandmother's visitation is set apart from, and prior

to, that portion of the decree entitled "Standard Possession Order." Appellant does not

complain of any other variances in the Standard Possession Order. Thus, we conclude

section 153.258 does not apply and find no abuse of discretion by the trial court in the

Standard Possession Order included in the decree.


        Still arguing under issue one, Appellant relies on article 16, section 15 of the

Texas Constitution and section 141.010 of the Texas Property Code4 to support her

contention that the trial court incorrectly awarded personal property of the minor children

to Appellee without naming him as a custodian.                  She complains specifically about

paragraph H-4 in the Division of Marital Estate portion of the divorce decree which

awards Appellee "[a]ll clothing and personal possessions of the minor children . . . ."

We disagree.


        B. Standard of Review-Division of Marital Estate


        A trial court has broad discretion in dividing the marital estate, and we presume

the trial court exercised its discretion properly. Murff v. Murff, 615 S.W.2d 696, 698-99

(Tex. 1981). Section 141.010 is implicated when custodial property is created by (1)

securities, (2) money paid or delivered, (3) ownership of a life or endowment insurance

policy or annuity contract, (4) an irrevocable exercise of a power of appointment or an

irrevocable present right to future payment under a contract, (5) an interest in real

property, (6) a certificate of title, or (7) an interest in property not described in (1)
4
 Article 16, section 15 describes separate and community property of a husband and wife while section
141.010 is entitled "Manner of Creating Custodial Property and Effecting Transfer; Designation of Initial
Custodian; Control."
                                                  5
through (6) that is transferred to an adult other than the transferor or to a trust company.

Tex. Prop. Code Ann. § 141.010 (West 2007).


                1. Analysis


       As urged by Appellee, none of the "clothing and personal possessions" of the

minor children awarded to him fall under the categories creating custodial property listed

in section 141.010. Because Appellee was designated joint managing conservator with

the exclusive right to designate the primary residence of the children, the trial court did

not abuse its discretion in awarding him the children's personal possessions. Issue one

is overruled.


Issue Two


       By her second issue, Appellant challenges the following findings of fact:


       1. The periods of possession comply with the Standard Possession Order.

       2. It is in the best interest of the minor children for all contact of the
       maternal grandmother with the minor children be while they are in the
       presence of the Petitioner, Mickie Joe Blount.

       3. It is in the best interest of the children that Nathan Bradley Blount . . .
       shall have the right to establish the primary residence of the children . . . .

       4. That Nathan Bradley Blount receives as his separate property the
       following:

                All clothing and personal possessions of the minor children . . . .

Although multifarious, Appellant's second issue can be distilled to (1) disagreement with

the trial court's decision to place a restriction on visitation between the minor children

and the maternal grandmother, which she contends was not plead nor tried by consent,
                                               6
(2) an erroneous and harmful admission of testimony from Sandra Hatcher, and (3)

dissatisfaction with the award to Appellee of the minor children's personal possessions.


       A. Standard of Review--Findings of Fact

       Findings of fact entered in a case tried to the bench have the same force and

dignity as a jury=s verdict upon questions.      Anderson v. City of Seven Points, 806

S.W.2d 791, 794 (Tex. 1991); City of Clute v. City of Lake Jackson, 559 S.W.2d 391,

395 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref=d n.r.e.). However, the findings

are not conclusive when a complete statement of facts appears in the record if the

contrary is established as a matter of law or if there is no evidence to support the

findings. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.--Houston

[14th Dist.] 1985), writ ref=d n.r.e., 699 S.W.2d 199 (Tex. 1985) (per curiam).


       A trial court=s findings of fact are reviewable for legal and factual sufficiency by

the same standards applied in reviewing the sufficiency of the evidence supporting a

jury=s finding. Anderson, 806 S.W.2d at 794. In reviewing a legal sufficiency issue, we

consider only the evidence and reasonable inferences therefrom which, when viewed in

their most favorable light, support the court's findings, disregarding all evidence and

inferences to the contrary. Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990). If

there is more than a scintilla of evidence to support the finding, the no evidence

challenge must fail. Id.


       In considering a factual sufficiency issue, we review all the evidence and reverse

only if the challenged finding is so against the great weight and preponderance of the

                                             7
evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.

1986); In re King's Esate, 150 Tex. 662, 244 S.W.2d 660, 661 (1962). We are not to

reweigh the evidence and set aside the finding merely because we feel that a different

result is more reasonable. Pool, 715 S.W.2d at 634. The trier of fact is the sole judge

of the credibility of the witnesses and the weight given their testimony, Leyva v.

Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962), and it may believe one witness

and disbelieve another as well as resolve inconsistencies in testimony. McGalliard v.

Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).


       B. Standard of Review--Evidentiary Rulings


       A trial court has broad discretion in considering testimony and evidence, with

regard to what conditions are detrimental or advantageous to children for the purpose of

deciding custody issues in a divorce proceeding. Niskar v. Niskar, 136 S.W.3d 749, 753

(Tex.App.--Dallas 2004, no pet.). A trial court's ruling on the admission of evidence is

reviewed for abuse of discretion. In the Interest of J.P.B., 180 S.W.3d 570, 575 (Tex.

2005). We will not reverse a trial court for an erroneous evidentiary ruling unless the

error probably caused the rendition of an improper judgment.            Tex. R. App. P.

44.1(a)(1).


       1. Analysis


       Initially, we address Appellant's argument that the trial court's restriction on the

maternal grandmother's visitation was not based on the pleadings nor tried by consent.

After the divorce hearing, counsel for Appellee requested by letter that the trial court
                                            8
include a restriction in the decree on the maternal grandmother's visitation with the

minor children. Counsel for Appellant disagreed with the request and objected to any

such provision as being unsupported by the evidence. Technical rules of practice and

pleadings are of little importance in determining issues concerning the custody of

children. Conley v. St. Jacques, 110 S.W.2d 1238, 1242 (Tex.Civ.App.--Amarillo 1937,

writ dism'd). When the parties invoke the jurisdiction of a court with respect to custody

and control of a minor child, that vests the court with decretal powers in all relevant

custody, control, possession, and visitation matters. Dunker v. Dunker, 659 S.W.2d

106, 108 (Tex.App.--Houston [14th Dist.] 1983, no writ).         Courts are given wide

discretion in these type proceedings. Id.


      Regarding Appellant's challenge to the trial court's finding that the periods of

possession comply with the Standard Possession Order, we have previously concluded

that the finding is not an infringement of Appellant's possessory rights.      As for the

restriction on the maternal grandmother's visitation with the minor children, the evidence

shows that during their marriage, Appellant and Appellee had an agreement not to

expose their children to Appellant's mother because of the manner in which she had

raised Appellant. Appellant testified that she had not had any communication with her

mother between Christmas 2005 and May 2009.


      Appellee testified that he had witnessed Appellant's mother strike her on the

mouth.    Sandra Hatcher, a lifelong friend of Appellant's, testified over relevance

objections that Appellant confided in her about the relationship between Appellant and

her mother. When Appellant was in high school, she decided to live with her father
                                            9
because of physical altercations with her mother and instances of behavior which could

be labeled as both physical and emotional abuse.5 During her testimony, Appellant

admitted to not getting along with her mother but denied any physical or emotional

abuse.


        Appellant contends the trial court erroneously admitted Hatcher's testimony over

her relevance objections. We disagree. Evidence is relevant if it has a tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence. Tex. R. Evid.

401. Appellant, a teacher, testified she had found employment in Petrolia, a suburb of

Wichita Falls. She arranged day care for her daughter, who was too young for school,

and her son would be attending school where she was teaching. However, she had no

support system nearby to help with the children or their activities. Her mother, however,

lived approximately sixty miles away. We conclude the trial court did not abuse its

discretion in admitting Hatcher's testimony and find the evidence is legally and factually

sufficient to support the trial court's finding that it is in the best interest of the children to

restrict their visitation with their maternal grandmother to being in Appellant's presence.


        Appellant alleges legal and factual insufficiency of the evidence to support the

trial court's determination that Appellee be awarded the right to establish the children's


5
  Hatcher testified that Appellant's mother would grab Appellant by the hair and slam her into walls and tell
her she was worthless and useless. She testified about an incident that Appellant confided in her that
when she was ten or eleven, her mother slammed her head through a window for not properly cleaning
the house. Her mother then refused to take her to a doctor for stitches and stitched the wound herself.
Hatcher continued that Appellant's mother told Appellant, "You've been nothing but trouble for me all your
life and you're not getting me in trouble over this."

                                                     10
primary residence. We disagree. At the conclusion of the evidence, the trial court ruled

for Appellee and announced:


       I think the support for those children is so much greater. [Appellant],
       you're moving to a new town. You're around strangers. Your family is 60
       miles away. We've got so much -- this is the hardest decision I've made
       as a Judge . . . . I am always for the kids.

                                            ***

       So understand upfront that my job . . . requires me to do what's in the best
       interest of . . . those children . . . .


The evidence is undisputed that Appellant and Appellee are both loving and caring

parents. Both of them are teachers in small schools with exemplary ratings where their

children would attend school. They both maintain suitable homes. However, the trial

court, in its discretion, was persuaded by Appellee's supportive family, friends, and

community. The proverb "it takes a village to raise a child," is apparent in the lives of

the children and the community of Paducah. Appellee's parents, grandparents, and a

couple the children affectionately refer to as Granny and Gramps, are all very involved

in the children's lives and activities. We conclude the trial court's finding is supported by

sufficient evidence.


      Appellant also contests the trial court's finding awarding Appellee the children's

personal possessions. As previously discussed, because Appellee was named joint

managing conservator with the exclusive right to determine the children's primary

residence, it is logical that he would be awarded their personal possessions, none of

which require him to be appointed as a custodian under the Texas Property Code.

                                             11
      Having reviewed the entire record, we conclude the challenged findings are all

supported by more than a scintilla of evidence and are not so against the great weight

and preponderance of the evidence as to be manifestly unjust. See Lewelling, 796

S.W.2d at 166. See also Pool, 715 S.W.2d at 635.


III. Issue Three


       By her third issue, Appellant maintains that her due process right to a fair and

impartial judge was violated and that the trial judge should have recused himself. Her

argument appears to be based upon four reasons: (1) the judge "spoke informally to a

witness while he was on the stand," (2) he allowed inadmissible evidence, (3) he

"include[ed] himself in the local environment to which the children were placed" and (4)

he heard a King County case in Cottle County. We find no reversible error.


       During the presentation of testimony the trial judge engaged in a verbal

exchange with one of the witnesses, Justin Nash, that indicated some degree of

familiarity between the two of them.6 A review of the record, however, reveals that no

objection was made to this exchange and no motion to recuse pursuant to Rule 18a of

the Texas Rules of Civil Procedure was ever filed.              Furthermore, no objection to the

impartiality of the trial judge or to the propriety of hearing the case in Cottle County was

ever made. In fact, the record reflects that both Appellant and her counsel signed a

"Waiver of Venue" agreeing to conduct the trial of this case in Cottle County for the


6
 During the exchange, witness Nash directly addressed the trial judge by his first name. The exchange
dealt with the value of goats in Cottle County. While the trial judge could have reminded the witness to
maintain the decorum of the court by avoiding such personal exchanges, nothing about the exchange
suggests to this Court any impropriety by the trial judge.
                                                      12
convenience of the trial court. Because no timely request, objection or motion was ever

made, Appellant has preserved nothing for review. See Tex. R. App. P. 33.1(a)(1).

Issue three is overruled.


                                       Conclusion


       The trial court's judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice




                                             13
