      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00382-CV



                                  James Derwood Iliff, Appellant

                                                   v.

                                    Jerilyn Trije Iliff, Appellee


       FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
           NO. 06-1108, HONORABLE WILLIAM HENRY, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant James Derwood Iliff (“James”) seeks review of the trial court’s judgment

entering a final decree of divorce from appellee Jerilyn Trije Iliff (“Jerilyn”). In three issues, James

contends that the trial court abused its discretion in entering the final divorce decree by ordering

child support payments in excess of the statutory guidelines, by ordering an unfair division of the

marital estate, and by failing to appoint James as joint managing conservator with standard periods

of unsupervised possession. Because we conclude there was no error in the trial court’s judgment,

we affirm.


                                          BACKGROUND

                James and Jerilyn were married on April 7, 1990. Three children were born of their

marriage: C.J., a son, on July 14, 1993, C.T., a daughter, on January 3, 1997, and C.M., a daughter,
on February 10, 2001. Jerilyn filed for divorce on June 28, 2006. After a trial to the bench, the trial

court entered a final decree of divorce on May 5, 2008.

                The district court heard evidence that throughout most of the marriage, James worked

in the chemical industry and was the “primary bread winner” of the family, earning between $90,000

to $100,000 per year.1 From the time they were married until 1998, Jerilyn worked at various

rehabilitation centers in Dallas, Houston, and Austin. In 1998, Jerilyn quit her job as a supervisor

at St. David’s to stay home with the children. The following year, Jerilyn returned to work part-time

at St. Stephen’s Episcopal School where the children attended school. Although her salary was

substantially less than James’s, Jerilyn received a tuition subsidy to help defray the cost of the

children’s attendance at St. Stephen’s.

                In 2005, James’s company, Ashland Chemicals, Inc., was sold to Air Products and

Chemicals, Inc. Later that year, James began hearing voices and saying that “people were watching

us, that people were intercepting faxes from our home.” He began to be more verbally abusive

to Jerilyn and the children. Without explanation, on January 1, 2006, James quit his job with

Air Products.

                When James quit his job, Jerilyn obtained additional work to help pay the family’s

expenses. Jerilyn testified that she began working “approximately 50 hours a week” at three more

jobs. Jerilyn testified that she began working as a PRN Therapist for Deer Creek Nursing Center and

Brown Carnie, and that she also worked for Wimberley Home Health Care and as the after-school


       1
         James held a bachelor’s degree and a masters degree of business administration, and he had
worked for 20 years in the chemical industry as a technical specialist, a chemical specialist, and
ultimately an account manager.

                                                  2
coordinator at St. Stephen’s School, so that she could “get a break on those costs.” The record

reflects that from January 1, 2006, through September 2006, James made several withdrawals from

his retirement accounts totaling $85,000 to help the family meet its expenses. The parties agree that

part of this money was used to pay off the liens on Jerilyn’s Ford Expedition and James’s truck and

the lien on a Kubota tractor; however, the record reflects that the total value of these notes was

approximately $45,000 and the remaining $40,000 was unaccounted for by James.

               Jerilyn testified that, after he quit his job, James’s behavior became erratic and

irrational. He began talking about people listening to his telephone conversations, intercepting his

faxes, and spying on him through the skylights. Jerilyn testified that James bought a .357 Magnum

pistol because he thought that people were spying on him. Jerilyn averred that James’s drinking

became excessive and that she found empty tequila bottles in the closet. Jerilyn testified that James

bought another gun and was sleeping excessively, did not bathe or change his clothes regularly, and

was not brushing his teeth or “doing general hygiene.” Jerilyn testified that there were occasions

when she left the children at home with James to go to home health care appointments for her job

and that, when she returned home, she would find James asleep in a locked office downstairs.

               Jerilyn also testified that, one day in May 2006, the family was attending one of her

daughter’s dance lessons and that she and James got into an argument about his treatment of their

son. That evening James became very ill, as if he had a stomach virus, and he was sick all night.

The next day, Jerilyn came home to find him hallucinating downstairs and saying that there was a

man in a black hat. Jerilyn took him to the hospital, and he was admitted to the intensive care unit




                                                 3
where he stayed for five days. Jerilyn testified that the hospital had to restrain James because of his

paranoid behavior and that they administered anti-psychotic medication to calm him down.

               Jerilyn filed for divorce in June 2006. Although Jerilyn and the children left the

family home briefly so that Jerilyn could spend time with her father, who was dying of prostate

cancer, the parties worked out an agreement under which James left and Jerilyn and the children

returned to the family home before school started in the fall of 2006. From the time he left in the

fall of 2006 until the trial in the spring of 2008, the record reflects that James saw his children only

four times. The parties dispute whether James made additional attempts to see his children, but they

did reach an agreement that the children would call him once a week during the hours of

6:00 p.m. - 8:00 p.m. on Wednesdays. James testified that he was traveling and trying to start his

business and, therefore, he was not able to see his children on a regular basis. But he also testified

that he was in central Texas at his property in Wimberley approximately once a month.

               The record reflects that James lived primarily with his mother in the Dallas area from

the fall of 2006 until trial in 2008. The record also reflects that James was hospitalized three more

times during that period of time, but that the doctors found nothing physically wrong with him other

than severe dehydration.

               In 2007, the parties reached a mediated settlement agreement on temporary orders that

was later reduced to a signed court order requiring the parties to participate in an interview with

Dr. Caryl Dalton, a psychologist in Austin, Texas. After that interview, the parties were also

required to participate in any further evaluation or testing recommended by Dr. Dalton. As part of

that court order, the parties were required to follow the recommendations of Dr. Dalton regarding



                                                   4
visitation between James and the children pending further court order. After conducting the

interview, Dr. Dalton made no further recommendation for evaluation of Jerilyn, but she

recommended that James undergo both a neuropsychological exam and a neurological evaluation.

               Although James underwent the neurological evaluation, he never obtained a

neuropsychological exam, despite two additional court orders that he do so. The neurological

evaluation was conducted by Dr. Robert Izor and was admitted into evidence at trial. Dr. Izor’s

evaluation reflected a diagnosis of paranoia and psychogenic movement disorder and recommended

treatment with an anti-depressant or anti-anxiety medication, which James refused.

               Based on his erratic behavior and repeated failure to comply with court orders for a

neuropsychological exam, as well as the recommendations of Dr. Dalton, the court found that the

standard possession order as contemplated in the family code was not appropriate and was not in the

best interest of the children. Accordingly, the court named Jerilyn as sole managing conservator with

James as possessory conservator. But the court restricted James’s access to the children until he

completed the required neuropsychological exam.

               With regard to child support, the trial court found that James was intentionally

unemployed or underemployed as a result of his own choosing. Although there was testimony and

evidence in the record from three doctors, including Dr. Dalton, Dr. Izor, and Dr. James Williams,

who had evaluated or treated James between the time Jerilyn filed for divorce up until trial, none of

these doctors testified that there was any reason that James could not obtain gainful employment.

James’s mother Cynthia Iliff testified that he could not stand for long periods of time because of a

martial arts injury that he had suffered just prior to Jerilyn’s filing for divorce and that this injury



                                                   5
affected his gait, but none of the witnesses at trial testified that this injury would prevent James

from working.

                James testified that he was not disabled and that he had tried to start his own tractor

business. James testified that his doctors ran extensive tests on him and found nothing wrong with

his heart and that he had never been told by a doctor that he suffers from a condition that prevents

him from working. He testified that his income from his tractor business was $1,287 in 2006 and

about $1,200 in 2007. James also testified that he made about $1,200 “in the past two years” doing

business management consulting.

                Although his income was minimal, the record reflects that James had been paying

$251.33 in child support for six months prior to trial. James testified that he had contracted for a

fence and horse corral totaling $6,4802 to be built on the Wimberley property in violation of a court

order. And he testified that he had been paying “[a] couple of hundred dollars a month” towards the

note on the Wimberley property as well as the annual taxes of $1,200 to $1,500 per year. When

asked where he obtained the money to pay for these expenses, James testified, “It’s coming from

my savings.”

                In addition to the $85,000 he withdrew from his retirement accounts in 2006, the

record reflects that James withdrew an additional $20,000 in 2007 to pay his lawyers. The

record also reflects that the total balance of James’s retirement accounts was $202,079.77 as of

June 20, 2006, and that this balance had been reduced to $98,869.80 as of February 5, 2008, and was


       2
         James testified that the estimated cost for the fence was $4,600 and the estimated cost for
the horse corral was $1,880. He also testified that he paid $2,300 down for the contractor to start
the job.

                                                  6
further reduced to $92,760 at the time of trial. Although James testified that he was the only person

with access to his retirement accounts, he provided no explanation for the approximately

$100,000 decrease in his retirement account balance from June 2006 until trial in 2008 other than

to say it was based on market fluctuations.3

               Based on his proven income shortly before the divorce, the trial court determined that

James’s gross monthly earning potential was $5,000.00 and that his net available resources were

$3,662.09 per month. Accordingly, the trial court awarded child support of $1,098.63, plus

$196.56 health insurance reimbursement, per month for three children; $915.52 child support, plus

$196.56 health insurance reimbursement, per month for two children; and $732.42 child support,

plus $196.56 health insurance reimbursement, per month for one child.

               As part of its final divorce decree, the trial court also divided the marital estate. The

trial court awarded the following property to Jerilyn:


       !       $ 5,000:        2001 Ford Expedition
       !       $ 8,632:        Jerilyn’s 401(k) account
       !       $100,000:       Net value of the residence located at 130 Elm Hollow, San
                               Marcos, Texas
       !       $ 12,992:       Net proceeds off the top of the sale of property located at 501
                               Winding Trail, Wimberley, Texas
       !       $ 65,404:       60% of the net proceeds of the sale of property located at 501
                               Winding Trail, Wimberley, Texas
       !       $ 11,400:       Personal property and furniture


               The final divorce decree also assigned the following debts to Jerilyn:




       3
         This $100,000 decrease included the $10,000 withdrawal in September 2006 and the
$20,000 withdrawal in 2007.

                                                  7
       !       $ 94,526:      The balance due on the first mortgage for the property located
                              at 130 Elm Hollow, San Marcos, Texas
       !       $ 51,629:      The balance due on the second mortgage for the property
                              located at 130 Elm Hollow, San Marcos, Texas
       !       $ 38,148:      Attorney’s Fees


               The trial court awarded the following property to James:


       !       $   98,896:    James’s 401(k) accounts
       !       $   19,300:    2001 Dodge 2500 Duramax Diesel 4X4 Truck
       !       $   14,000:    2003 HST Kubota Tractor
       !       $      300:    2003 16N flatbed trailer
       !       $   43,603:    40% of the net proceeds of the sale of property located at 501
                              Winding Trail, Wimberley, Texas


               The final divorce decree also assigned the following debts to James:


       !       $ 3,755:       Balance owing on Visa account
       !       $ 4,070:       Balance owing on fence and corral construction
       !       $ 17,000:      Balance owing on medical bills


               The trial court signed and entered the final divorce decree on May 5, 2008.4 Pursuant

to James’s request, the trial court entered findings of fact and conclusions of law on June 3, 2008.

This appeal followed.




       4
          Also included in the record before us is the trial court’s statement on child support
guidelines, which was filed on April 25, 2008.

                                                 8
                                            DISCUSSION

                In three issues on appeal, James complains that the trial court abused its discretion

when it entered the final decree of divorce. First, James argues that the trial court abused its

discretion by ordering him to pay child support to Jerilyn in excess of the statutory guidelines.

Second, James argues that the trial court abused its discretion when it ordered an unfair division of

the marital estate. Finally, James argues that the trial court abused its discretion by failing to appoint

him as joint managing conservator with standard periods of unsupervised possession. Jerilyn

counters that there was no abuse of discretion and urges this Court to affirm the trial court’s final

decree of divorce.


Standard of Review

                With regard to the issues of child support, division of the marital estate, and child

custody, possession, and visitation raised by James on appeal, we review the trial court’s decisions

on such matters for abuse of discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)

(child support); Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1991) (division of marital estate);

Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (child custody, control, possession, and

visitation). A trial court’s order on child support will not be disturbed on appeal unless the

complaining party demonstrates that the order constituted a clear abuse of the trial court’s discretion.

Worford, 801 S.W.2d at 109. Absent a clear abuse of discretion, an appellate court will not disturb

a trial court’s division of property. Murff, 615 S.W.2d at 698-99; Bell v. Bell, 513 S.W.2d 20, 22

(Tex. 1974). And we give wide latitude to the trial court’s determinations on custody, control,

possession, and visitation. Gillespie, 644 S.W.2d at 451.

                                                    9
               As a general rule, a trial court abuses its discretion when it acts arbitrarily or

unreasonably or without reference to guiding rules and principles. Worford, 801 S.W.2d at 109;

see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The fact that

a trial court may decide a matter within its discretionary authority differently than an appellate court

in similar circumstances does not demonstrate an abuse of discretion. Downer, 701 S.W.2d at 242.

When reviewing matters committed to the trial court’s discretion, we may not substitute our

judgment for that of the trial court. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

There is no abuse of discretion if some probative and substantive evidence supports the trial court’s

order.   Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied);

McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

               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. Zeifman, 212 S.W.3d at 587; In re D. M., 191 S.W.3d 381, 393

(Tex. App.—Austin 2006, pet. denied); Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston

[1st Dist.] 2005, pet. denied). Because we apply an abuse-of-discretion standard to the issues raised

by James on appeal, the traditional sufficiency standards of review overlap the abuse of discretion

standard, and we employ a hybrid analysis. See Zeifman, 212 S.W.3d at 587-88; see also Echols

v. Olivarez, 85 S.W.3d 475, 476-77 (Tex. App.—Austin 2002, no pet.); In re D.S., 76 S.W.3d 512,

516 (Tex. App.—Houston [14th Dist.] 2002, no pet.). We engage in a two-pronged inquiry asking

first, whether the trial court had sufficient information upon which to exercise its discretion, and

second, whether the trial court erred in its application of discretion. Zeifman, 212 S.W.3d at 588.



                                                  10
A traditional sufficiency review comes into play with regard to the first question, and we must then

determine whether, based on the evidence, the trial court’s decision was reasonable. Id.

                In an appeal after a bench trial in which the trial court entered findings of fact and

conclusions of law, the trial court’s findings have the same weight as a jury verdict. In re K.R.P.,

80 S.W.3d 669, 673 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). When challenged, we

review the trial court’s findings for legal and factual sufficiency. Id.

                We will sustain a legal sufficiency challenge when (1) the record discloses a complete

absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact

is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining

whether there is legally sufficient evidence to support the finding under review, we examine the

record for evidence and inferences that support the challenged finding, considering evidence

favorable to the finding if a reasonable factfinder could, and disregarding evidence contrary to the

finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827-28

(Tex. 2005). We will not substitute our judgment for that of the factfinder if the evidence falls in

the zone of reasonable disagreement. Id. at 822. If there is any evidence of probative force to

support the finding—i.e., more than a scintilla—we will uphold the finding and overrule the legal

sufficiency challenge.    Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003)

(per curiam).




                                                   11
                In determining a question of factual sufficiency, we weigh and consider all of the

evidence in the record. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We will sustain a

factual sufficiency challenge and “set aside the verdict only if it is so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust.” See id.

                In a case tried to the bench, the trial court is the “sole judge of the credibility of the

witnesses and the weight to be given their testimony.” McGalliard v. Kuhlmann, 722 S.W.2d 694,

696 (Tex. 1986).      The trial court may believe one witness, disbelieve others, and resolve

inconsistencies in any witness’s testimony. Id. at 697.


Child Support

                In his first issue, James complains that the trial court abused its discretion by

awarding child support in excess of the statutory guidelines. James complains that there is no

evidence to support the trial court’s findings that his net available monthly resources were

$3,662.09 and that he was intentionally unemployed or underemployed.

                The evidence at trial showed that James had a bachelor’s degree and a master’s degree

in business administration, that he had worked for almost twenty years in the chemical industry, and

that he quit his job that paid $102,000 a year at the end of January 2006. With regard to his ability

to work, James testified that he was not disabled and that no doctor had told him that he could not

work. He further testified that, after quitting his job, he tried to start his own tractor business and

that he received about $1,287 in 2006 and about $1,200 in 2007. He also testified that he received

about $1,200 “in the past two years” from business management consulting. Based on this evidence,

the trial court entered the following findings of fact with regard to child support:

                                                   12
       7.      The Court has already entered a Statement on Child Support Guidelines
               signed and entered on April 25, 2008. A true and correct copy of which is
               attached hereto and incorporated herein.

       8.      The Court further finds:

               1.      [T]he amount of child support ordered by the court is in accordance
                       with the percentage guidelines;

               2.      [T]he amount of net resources available to JAMES DERWOOD
                       ILIFF per month is $3,662.09. This finding is based in part upon
                       JAMES DERWOOD ILIFF’s proven earnings shortly before the
                       filing of the divorce, his educational background, his intentional
                       unemployment or underemployment, JAMES DERWOOD ILIFF’s
                       earning potential, and the evidence presented at trial. JAMES
                       DERWOOD ILIFF’s own testimony at trial showed that he made in
                       excess of $100,000 in earnings in 2005, the year immediately prior to
                       the filing of divorce. JAMES DERWOOD ILIFF testified at trial that
                       he had left his employment voluntarily in December of 2005. He
                       further testified that he was not disabled or unable to work and plans
                       to start his own business. JAMES DERWOOD ILIFF’s monthly
                       gross earning potential is found to be no less than $5,000 per
                       month. . . .


               The paramount principle guiding our review of the trial court’s determination on child

support is the best interest of the child. See Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3

(Tex. 1993); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex. App.—Austin 1996, no writ). The

trial court’s determination on child support is governed by chapter 154 of the family code.

See Tex. Fam. Code Ann. §§ 154.001-.309 (West 2008). Particularly applicable in this case,

section 154.066 of the family code allows a trial court to apply the child support percentage

guidelines based upon earning potential if the actual income of the obligor is significantly less than

what the obligor could earn because of intentional unemployment or underemployment.

                                                 13
Id. § 154.066;5 In re Striegler, 915 S.W.2d 629, 638 (Tex. App.—Amarillo 1996, writ denied). A

parent with the ability to find gainful employment cannot evade his support obligation by voluntarily

remaining unemployed or underemployed.             McLane v. McLane, 263 S.W.3d 358, 362

(Tex. App.—Houston [1st Dist.] 2008, pet. denied); Tenery v. Tenery, 955 S.W.2d 337, 340

(Tex. App.—San Antonio 1997, no pet.).

                The evidence in the record supports the trial court’s finding that James was

intentionally unemployed or underemployed and that his earning potential was no less than $5,000

per month. James testified that he was not disabled and that he voluntarily quit his job in January

2006, which paid over $100,000 per year. We conclude there was no abuse of discretion in the trial

court’s decision to apply the percentage guidelines based on James’s earning potential. See

Tex. Fam. Code Ann. § 154.066; see also McLane, 263 S.W.3d at 362; Tenery, 955 S.W.2d at 340.

                We likewise reject James’s argument that the trial court was required to find that his

voluntary unemployment was for the primary purpose of avoiding child support before setting child

support based upon his earning potential as opposed to his actual income. In support of this

argument, James relies on the holdings of our sister courts of appeals in McLane, 263 S.W.3d at 362,

and In re P.J.H., 25 S.W.3d 402, 405-06 (Tex. App.—Fort Worth 2000, no pet.). But this Court has

declined to adopt the reasoning of our sister courts. In Hollifield v. Hollifield, finding that


       5
           Section 154.066 states:

       If the actual income of the obligor is significantly less than what the obligor could
       earn because of intentional unemployment or underemployment, the court may apply
       the support guidelines to the earning potential of the obligor.

Tex. Fam. Code Ann. § 154.066 (West 2008).

                                                 14
unemployment was but one of myriad factors a court could consider when exercising its broad

discretion to determine child support obligations, this Court held that “[s]ection 154.066 does not

require the court to consider whether the obligor’s ‘voluntary unemployment’ was for the primary

purpose of avoiding child support.” 925 S.W.2d at 156. This Court’s holding in Hollifield is

consistent with the plain language of section 154.066, and we decline to revisit that holding here.

We overrule James’s first issue.


Division of Marital Estate

               In his second issue, James complains that the trial court abused its discretion in

making an unjust division of the marital estate. James’s complaint that the trial court’s division was

unjust is based primarily upon the trial court’s use of the appraised value provided by Jerilyn’s

expert, Stephen Flynn, for the property located at 130 Elm Hollow, San Marcos, Texas—the parties’

primary residence before the divorce. In contrast to the appraised value provided by Mr. Flynn,

James presented the testimony of his own expert witness, Randy Posey, who appraised the property

in question at a higher value than Mr. Flynn.

               Mr. Flynn testified at trial that he conducted an appraisal of the property located at

130 Elm Hollow and that, as of November 3, 2006, the property value was $247,000. He further

testified that the values of properties in that area had appreciated approximately 5% between the date

of his original appraisal and the trial in 2008. In addition to Mr. Flynn’s testimony, Mr. Posey

testified that he conducted an appraisal of the same property and that the value as of

December 8, 2006, was $275,000. Mr. Posey also testified that he updated his appraisal just before

trial and, at that time, the value would have been $285,000 based upon more recent comparable

                                                 15
sales. Mr. Posey testified that the increase in value from 2006 to 2008 was approximately 3.6%.

He further testified that the difference between his appraised value and that of Mr. Flynn was based

primarily on the difference in their original appraisals in 2006, and not the appreciation between

2006 and 2008.

                 A trial court is obligated to make a just and right division of the marital estate in

rendering a final decree of divorce.         See Tex. Fam. Code Ann. § 7.001 (West 2008);6

O’Carolan v. Hopper, 71 S.W.3d 529, 532 (Tex. App.—Austin 2002, no pet.). A just and right

division must have due regard for the rights of each party and their children. See Tex. Fam. Code

Ann. § 7.001; Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 & nn.1-2 (Tex. 1977). Although a

trial court need not divide the community estate equally, its division must be equitable.

O’Carolan, 71 S.W.3d at 532; Schuster v. Schuster, 690 S.W.2d 644, 645 (Tex. App.—Austin 1985,

no writ).

                 Based on the evidence in the record, we conclude there was no abuse of discretion

in the trial court’s division of the marital estate. The evidence showed that in 2006 James withdrew

$85,000 from his retirement accounts, which were part of the community estate, but that he could

only account for approximately $45,000 of these withdrawals even though he testified that he was




       6
            Section 7.001 of the family code states:

       In a decree of divorce or annulment, the court shall order a division of the estate of
       the parties in a manner that the court deems just and right, having due regard for the
       rights of each party and any children of the marriage.

Tex. Fam. Code Ann. § 7.001 (West 2008).


                                                  16
the only person with access to his retirement accounts.7 In addition to the failure to account for

the full amount of these withdrawals, James provided no explanation for the approximate

$100,000 decrease in the balance of his retirement accounts from June 2006 until the time of trial

in 2008 other than to say that it was based on market fluctuations.8 The trial court was free to

consider all of this evidence, or the lack thereof, in making a just and right division of the marital

estate. See Tex. Fam. Code Ann. § 7.001.

               In making its determination of a just and right division, the trial court stated that it

took the following factors into account:


       a.      fault in the breakup of the marriage;

       b.      fraud on the community;

       c.      benefits the innocent spouse may have derived from the continuation of the
               marriage;

       d.      the spouse to whom conservatorship of the children is granted;

       e.      needs of the children of the marriage;



       7
           Jerilyn testified that $45,000 of the $85,000 in withdrawals was used to pay off the liens
on James’s vehicle, Jerilyn’s vehicle, and the Kubota tractor awarded to James in the final divorce
decree. In contrast, James testified that the total value of these three liens was $28,000 and that he
used the remaining $60,000 to pay bills, living expenses, property taxes, and income taxes.
Regardless of whether the trial court accepted Jerilyn’s or James’s testimony on the value of these
liens, there remains a substantial portion of the withdrawals that was unaccounted for.
       8
          The trial court found that the total balance in James’s three retirement accounts was
$202,097.77 on June 20, 2006, and that the value of those same accounts had been reduced to
$98,869.80 on February 5, 2008, shortly before trial. Of this $100,000 decrease, James testified only
to his $10,000 withdrawal in September 2006 and his $20,000 withdrawal in 2007. There was no
evidence or explanation beyond James’s statement of “market fluctuations” to account for the
remaining decrease.

                                                 17
       f.      community indebtedness and liabilities;

       g.      wasting of community assets by [James];

       h.      attorney’s fees to be paid;

       i.      increased costs of the litigation of this case resulting from [James]’s repeated
               violation of the orders of this Court;

       j.      [James]’s violation of the standing order of this Court regarding expenditures
               during the pending of the divorce, including monies spent by [James] on the
               construction of a fence and corral on the acreage at 501 Winding Trail,
               Wimberley, Texas;

       k.      [James]’s failure to adequately provide for the support of the children during
               the pendency of the divorce; and

       l.      undue financial burden placed upon [Jerilyn] to support the family and pay
               necessary expenditures during the pendency of the divorce.9


               In making its determination of a just and right division of the marital estate, the trial

court was the sole judge of the witness’s credibility and the weight to be given that testimony.

McGalliard, 722 S.W.2d at 696. And the trial court was free to accept or reject the testimony of

each witness in whole or in part and to resolve any inconsistencies in the testimony. Id. at 697. The


       9
           To the extent James argues that the trial court’s consideration of these factors was
irrelevant, or that there was no evidence in the record to support the trial court’s consideration of
these factors, we find his argument to be without merit. The record reflects that James voluntarily
quit his six-figure job and that this unilateral decision led to the break-up of the marriage. The
record further reflects that James’s decision placed an undue financial burden on Jerilyn’s ability to
support the family and pay expenses during the pending divorce. James testified that he was not
disabled or unable to work and that he spent $40,000 of the community funds in his retirement
accounts to pay his attorney’s fees. The evidence in the record also reflects that James repeatedly
violated the trial court’s orders, withdrew and spent community funds without accounting for such
expenditures, and thereby failed to adequately provide for the support of his children during the
pending divorce. We therefore conclude that the record supports the trial court’s consideration of
the enumerated factors in making a just and right division of the marital estate.

                                                  18
trial court thus acted within its discretion to accept the testimony of Mr. Flynn and reject the

testimony of Mr. Posey when making a just and right division of the marital estate. Because there

is probative and substantive evidence in the record that supports the trial court’s order, we conclude

there was no abuse of discretion in the trial court’s division of the marital estate. See Zeifman,

212 S.W.3d at 587; McGuire, 4 S.W.3d at 384. We overrule James’s second issue.


Child Custody and Possession

               In his third and final issue, James complains that the trial court abused its discretion

in failing to appoint him as joint managing conservator with periods of standard unsupervised

possession. James’s argument is based primarily upon the rebuttable presumption in section 153.131

of the family code that the appointment of both parents as joint managing conservators is in the best

interest of the children. See Tex. Fam. Code Ann. § 153.131(b) (West 2008).

               The trial court entered the following findings of fact with regard to possession and

conservatorship:


       5.      It is in the best interest of the children that JERILYN TRIJE ILIFF be
               appointed the sole managing conservator of the children with those rights and
               duties granted in the decree, and that JAMES DERWOOD ILIFF be
               appointed the possessory conservator of the children.

                                                ***

       6.      The periods of possession between JAMES DERWOOD ILIFF and the minor
               children ordered in the Final Decree vary from the Standard Possession Order
               for the following reasons:

               1.      JAMES DERWOOD ILIFF has had very infrequent physical contact
                       with the children since the separation of the parties on June 20, 2006,
                       and the final hearing on the divorce. He has physically visited with

                                                 19
     the children approximately four (4) times in a period of almost
     twenty-two (22) months between the separation and the final hearing.

2.   The parties on June 8, 2007, reached a mediated settlement agreement
     on temporary orders that was later reduced to an order signed by the
     Court on June 12, 2007. Said mediated settlement agreement and
     order are part of the evidence in this case. In that mediated settlement
     agreement and temporary order, the parties were to participate in an
     interview with Dr. Caryl Dalton, a psychologist in Austin, Texas.
     After that interview, each party was required to participate in good
     faith in any further evaluation or testing recommended by Dr. Dalton
     and pay the cost of the same. The parties were to follow the
     recommendations of Dr. Dalton regarding visitation between JAMES
     DERWOOD ILIFF and the children after any recommended
     evaluation until further order of the Court. Dr. Dalton made no
     recommendation for further evaluation of JERILYN TRIJE ILIFF and
     recommended further evaluation of JAMES DERWOOD ILIFF.

3.   The Court finds that on August 20, 2007, Dr. Dalton made a written
     recommendation that is part of the evidence in this case that JAMES
     DERWOOD ILIFF undergo both a neuropsychological examination
     and a neurological evaluation.

4.   The Court finds that even though JAMES DERWOOD ILIFF
     eventually underwent the neurological examination, he repeatedly
     failed to undergo the neuropsychological evaluation that had been
     agreed to and ordered.

5.   The parties entered into a Rule 11 Agreement in open court that was
     reduced to writing and filed with the Court on January 30, 2008,
     requiring JAMES DERWOOD ILIFF again to complete the
     evaluations recommended by Dr. Caryl Dalton. This Rule 11
     Agreement was further set out in an Agreed Order of the Court
     entered on February 14, 2008. Said Rule 11 Agreement and Order are
     part of the evidence in this case.

6.   The Court finds that even after having agreed to and been ordered
     twice to perform the neuropsychological evaluation, JAMES
     DERWOOD ILIFF refused again to participate in the examination by
     Dr. David Tucker of Austin, Texas, and went to trial without ever
     complying with the court ordered neuropsychological evaluation.



                               20
               7.     The Court further heard testimony from Dr. Caryl Dalton at trial,
                      which included her recommendation regarding the need for a
                      nueropsychological evaluation of JAMES DERWOOD ILIFF, the
                      refusal of JAMES DERWOOD ILIFF to participate, and her
                      recommendation regarding limited contact between JAMES
                      DERWOOD ILIFF and the children until after the evaluation had
                      been performed.

               8.     The Court finds from the evidence and testimony that JAMES
                      DERWOOD ILIFF demonstrated a history of bizarre and unusual
                      behavior in the presence of his wife and family. This included
                      paranoid behavior in which JAMES DERWOOD ILIFF believed his
                      employer was monitoring him by satellite. The testimony further
                      showed that during a hospitalization in May 2006, JAMES
                      DERWOOD ILIFF had to be restrained for approximately five (5)
                      days due to delusional behavior. The evaluation of Dr. Robert Izor,
                      neurologist, which was admitted into evidence, reflected a diagnosis
                      of paranoia along with a diagnosis of psychogenic movement
                      disorder. The record further reflected that Dr. Izor recommended that
                      JAMES DERWOOD ILIFF take anti-anxiety medication, which
                      JAMES DERWOOD ILIFF refused. . . .

               9.     Given evidence of the history of JAMES DERWOOD ILIFF’s
                      behavior, his repeated failure to obey the orders of the Court for a
                      neuropsychological evaluation and the recommendations of Dr. Caryl
                      Dalton, it is found that the standard possession order is not
                      appropriate and not in the best interest of the children, and that the
                      court ordered neuropsychological evaluation of JAMES DERWOOD
                      ILIFF and restricted access to the minor children until its completion
                      is in the best interest of the children.


               Section 153.131(a) of the family code provides for the appointment of a child’s

parents as joint managing conservators, unless the court finds the appointment would not be in the

best interest of the child because it would significantly impair the child’s physical health or

emotional development. Tex. Fam. Code Ann. § 153.131(a). The trial court expressly found that

it would not be in the best interest of the children to appoint James as joint managing conservator



                                                21
and that his visitation with the children should be restricted until after he completed the court ordered

neuropsychological exam recommended by Dr. Dalton. The trial court’s findings were based on

James’s history of bizarre and unusual behavior.

                The evidence at trial supports the trial court’s findings. Jerilyn testified that James

believed that people were reading his faxes and monitoring the family cell phones and all company

equipment. Jerilyn also testified that James thought people were spying on him through skylights

and that he believed Jerilyn’s attorney had hired people to watch him. The evidence at trial

confirmed that James had repeatedly violated the trial court’s orders to undergo a neuropsychological

exam as recommended by Dr. Dalton and that he did not complete this evaluation before trial.

Dr. Dalton also testified that the children had fears regarding their visits with James and that she

could not recommend either overnight visitation or visitation outside the local San Marcos area.

                James testified that although he requested the standard possession order, he did not

know if this would be possible given his travel schedule. The record showed that James lived in the

Dallas area with his mother and that he was traveling to central Texas about once a month to work

on the property in Wimberley. James also proposed that a “mutually agreed to third party” serve as

the method of communication between himself and Jerilyn regarding the children. When asked if

he could use e-mail to communicate directly with Jerilyn, James stated, “I don’t know . . . [t]he only

two that I’ve received from her in the last two years were not positive and not cordial or civil.”

Dr. Dalton confirmed that the relationship between James and Jerilyn was tense when she testified

that James told her he never wanted to be in the same room with Jerilyn or see her again. The




                                                   22
evidence further showed that in the two-and-a-half years between the separation and the final

hearing, the parties had one “second and a half” phone call and one voice mail message.

               A trial court has broad discretion in deciding child custody issues. Gillespie,

644 S.W.2d at 451; In re J.R.D., 169 S.W.3d 740, 742-43 (Tex. App.—Austin 2005, pet. denied).

The best interest of the child is always the primary consideration when determining issues of

conservatorship and possession. Tex. Fam. Code Ann. § 153.002 (West 2008); Brook v. Brook,

881 S.W.2d 297, 298 (Tex. 1994). The determination of conservatorship issues is “intensely fact

driven,” see Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002), and we will not disturb the trial court’s

child-custody decision unless the record as a whole shows the trial court abused its discretion,

see In re J.R.D., 169 S.W.3d at 743.

               Although there is a rebuttable presumption that both parents should be appointed joint

managing conservators, on this record, we cannot say that the trial court abused its discretion in

appointing Jerilyn as sole managing conservator with James as possessory conservator. See

Lenz, 79 S.W.3d at 19; Gillespie, 644 S.W.2d at 450-51. Nor can we say that the trial court

abused its discretion in restricting James’s visitation with the children until after he completed

the court-ordered neuropsychological evaluation recommended by Dr. Dalton.                See Lenz,

79 S.W.3d at 19; Gillespie, 644 S.W.2d at 450-51. There is sufficient probative and substantive

evidence in the record to support the trial court’s determinations of custody and possession.

See Gillespie, 644 S.W.2d at 451. We overrule James’s third issue.




                                                23
                                      CONCLUSION

              Having considered and overruled James’s issues on appeal, we affirm the trial

court’s judgment.



                                          __________________________________________

                                          Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: July 21, 2009




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