Brent Thomas McPherson v. Ruth Hollyer

Opinion issued April 28, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00619-CV

———————————

Brent Thomas

McPherson , Appellant

V.

Ruth Hollyer , Appellee

On

Appeal from the 245th District Court

Harris

County, Texas

Trial Court Case No. 2008-20953

MEMORANDUM OPINION

This is an appeal from the trial court’s

order concerning the conservatorship of a minor child, C.M. Following a hearing before the trial court,

the trial court appointed C.M.’s maternal grandmother, Ruth Hollyer, sole

managing conservator of the child. The

trial court appointed the child’s biological parents, Brent T. McPherson and

Caroline Hollyer, possessory conservators of the child. McPherson appeals the trial court’s

order. In three points of error,

McPherson argues: (1) the trial court erred in rejecting the mediated

settlement agreement between him and Ruth Hollyer; (2) there is no evidence in

the record to rebut the statutory presumption that it was in C.M.’s best

interest to appoint him as managing conservator of C.M.; and (3) there is no

evidence in the record supporting the trial court’s decision to restrict his

possessory rights.

We affirm.

Background

In April 2008, Ruth Hollyer filed a petition requesting

that she be appointed the sole managing conservator of C.M. McPherson filed a counter-petition requesting

that he be appointed the sole managing conservator of C.M.

McPherson and Ruth Hollyer attended mediation. Caroline Hollyer was not present at the

mediation, nor is there any evidence that she was aware of it. McPherson and Ruth Hollyer entered into a

mediated settlement agreement, awarding McPherson sole managing conservatorship

of C.M. and awarding Ruth Hollyer possessory conservatorship. [1] The parties agreed that any time that the

trial court might award to Caroline Hollyer for visitation or possession would

be taken from the time allotted to Ruth Hollyer for her possession.

At the hearing to establish conservatorship, McPherson and

Ruth Hollyer asked the trial court to enter the settlement agreement as an

order. Caroline Hollyer was at the

hearing and did not consent to the entry of the settlement agreement. The trial court rejected the settlement

agreement, and the parties proceeded to present evidence concerning who should

be awarded conservatorship of C.M.

There was conflicting testimony at the hearing about where

C.M. had lived over the years. McPherson

testified that C.M. had lived with him and Caroline Hollyer for the first year

of her life. After that year, they all

moved in with McPherson’s father.

Shortly thereafter, Caroline Hollyer moved out. Some time later, McPherson began attending

college in Galveston, where he obtained an apartment. He also testified that C.M. had lived with

his mother since C.M.’s first year.

Caroline Hollyer testified that C.M. had lived with Ruth

Hollyer all of C.M.’s life. Ruth Hollyer

testified that C.M. had lived with her since C.M. was one year old. All the parties agreed that C.M. had health

insurance under Ruth Hollyer’s insurance.

Ruth testified that she was only able to put C.M. on her insurance

because C.M. lived with her.

All the parties agreed that, from August 2008 until the

hearing, C.M. resided with McPherson’s mother.

Ruth Hollyer testified that McPherson picked up C.M. from daycare for an

agreed-upon visitation period and later refused to return C.M. to her. McPherson denied that C.M. had ever lived

with Ruth Hollyer, so there was no reason to return C.M. to her.

Ruth Hollyer testified that the period that McPherson took

possession of C.M. and kept her at his mother’s home was traumatic for C.M. and

C.M. expressed that to Ruth Hollyer.

C.M. also exhibited physical reactions to the trauma including a swollen

lip from continuously biting her lower lip.

McPherson also testified that he was still in school at

the time of the hearing, that he would continue to live in Galveston for at

least a couple of days out of the week, that his mother would take care of C.M.

while he was not there, and that he would reside with his mother and C.M. while

he was there. Because he did not have a

job while he was in school, he would give his mother money when he could from

scholarships, retention funds, grants, and student loans. He had a job from “2003 to almost 2005” and

after that did some work giving private baseball lessons and working at his

father’s baseball camps during the summer.

He admitted that he had never given Ruth Hollyer money for C.M.’s care,

but testified that he had given his mother money.

McPherson’s mother was not a party to the suit, did not

testify, and did not seek any assignment of custody for C.M. There was no other testimony about whether

McPherson’s mother had the means to provide for C.M. beyond what McPherson

occasionally provided her. Additionally,

there is no evidence of McPherson’s mother’s ability to provide care for C.M.

or even that she wanted to be C.M.’s primary caretaker while McPherson was in

school.

In contrast, Ruth Hollyer testified that she had been

working for Shell Oil Company for 30 years as an engineering associate. She was the party to first bring this action

and asked the court to assign her as the sole managing conservator. She testified that she had provided for C.M.

since C.M. was one, including enrolling her in day care, obtaining and paying

for health insurance, and taking her to doctor’s appointments.

At the end of the hearing, the trial court appointed Ruth

Hollyer as the sole managing conservator and appointed McPherson and Caroline

Hollyer as possessory conservators.

Mediated Settlement Agreement

In his first point of error, McPherson argues that the

trial court erred by rejecting the mediated settlement agreement entered into

by McPherson and Hollyer.

A party claiming error on appeal must present a concise

argument for the contentions made with appropriate citations to authorities and

to the record. Tex. R. App. P. 38.1(i).

This party bears the burden of showing the record supports the

contentions raised. In re J.M.C.A. , 31 S.W.3d 692, 699 (Tex. App.—Houston [1st Dist.]

2000, no pet.). The mediated settlement

agreement that McPherson argues the trial court erred by rejecting is not a

part of the record.

The Texas Rules of Appellate Procedure establishes a

limited number of documents that must be included in the clerk’s record. Tex. R.

App. P. 34.5(a). Anything more

must be designated by the parties. Tex. R. App. P. 34.5(b). Additionally, any party can seek

supplementation of the clerk’s record and, at least until the time the case is

set for submission, the supplement will be accepted. Id.

; Worthy v. Collagen Corp. , 967

S.W.2d 360, 366 (Tex. 1998) (holding that, after submission, courts have more

discretion in denying supplementation).

The parties never filed a designation of the record in

this case. As a result, the original clerk’s

record consisted only of the items enumerated in Rule 34.5(a). Subsequently, no party filed a request for

supplementation. Instead, McPherson

attaches the document as an appendix to his brief. Attachments of documents as exhibits or

appendices to briefs do not constitute a formal inclusion in the record on

appeal and cannot be considered. Sowell v. The Kroger Co. , 263 S.W.3d 36,

38 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Because the document central to McPherson’s argument is

not a part of our appellate record, any error in the trial court’s rejection of

it has been waived. We overrule

appellant’s first point of error.

Appointment of Grandmother as Sole Managing

Conservator

In his second point of error, McPherson argues that there

is no evidence in the record to rebut the statutory presumption that it was in

C.M.’s best interest to appoint him as managing conservator of C.M.

A.

Standard of Review & Applicable Law

We review a trial court’s decision on conservatorship for

an abuse of discretion and reverse the trial court only if we determine, from

reviewing the record as a whole, that the trial court abused its

discretion. Monroe v. Alternatives in

Motion , 234 S.W.3d 56, 64

(Tex. App.—Houston [1st Dist.] 2007, no pet.).

A trial court abuses its discretion when it acts arbitrarily or

unreasonably, or without reference to any guiding rules or principles. Id. at 64–65. We view the evidence in the light most

favorable to the trial court’s decision and indulge every legal presumption in

favor of its judgment. Holley v.

Holley , 864 S.W.2d 703, 706

(Tex. App.—Houston [1st Dist.] 1993, writ denied).

Under an abuse of discretion standard, legal insufficiency

is not an independent reversible ground, but is a relevant factor in assessing

whether the trial court abused its discretion.

Mai v. Mai , 853 S.W.2d 615, 618 (Tex. App.—Houston [1st Dist.]

1993, no writ). To determine whether

there has been an abuse of discretion because the evidence is legally

insufficient to support the trial court’s decision, we consider: (1) whether

the trial court had sufficient evidence upon which to exercise its discretion

and (2) whether it erred in its application of that discretion. In re T.D.C. , 91 S.W.3d 865, 872 (Tex.

App.—Fort Worth 2002, pet. denied).

Under the first prong,

we apply the applicable sufficiency review.

Id. In a legal sufficiency

review, we consider all of the evidence in the light most favorable to the

verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson , 168 S.W.3d

802, 822 (Tex. 2005). We consider

evidence favorable to the finding if a reasonable factfinder could and

disregard evidence contrary to the finding unless a reasonable factfinder could

not disregard it. Id. at 827 ; Brown

v. Brown , 236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.] 2007, no

pet.). The factfinder is the sole judge

of the credibility of the witnesses and the weight to give their

testimony. Wilson , 168 S.W.3d at

819 . When there is conflicting evidence,

it is the province of the factfinder to resolve such conflicts. See id.

at 820 . The final test is “whether the

evidence at trial would enable reasonable and fair-minded people to reach the

verdict under review.” Id. at

827 .

Under the second prong,

we consider whether, based on the evidence, the trial court’s decision was

arbitrary, unreasonable, or without reference to guiding rules or

principles. In re T.D.C. , 91

S.W.3d at 872 .

In determining conservatorship and possession issues, the

best interest of the child is always the primary consideration. Tex.

Fam. Code Ann. § 153.002 (West 2008); Lenz v. Lenz , 79 S.W.3d 10, 14 (Tex. 2002). Furthermore, “public policy of this state is

to : (1)

assure that children will have frequent and continuing contact with parents who

have shown the ability to act in the best interest of the child; (2) provide a

safe, stable, and nonviolent environment for the child; and (3) encourage

parents to share in the rights and duties of raising their child after the

parents have separated or dissolved their marriage. ” Tex.

Fam. Code Ann. § 153.001(a) (West 2008). The burden of proof in conservatorship cases

is a preponderance of the evidence. Id. § 105.005 (West 2008); Monroe , 234 S.W.3d at 65 .

B.

Analysis

There is a rebuttable presumption “that the appointment of

the parents of a child as joint managing conservators is in the best interest

of the child.” Tex. Fam. Code Ann. § 153.131(b) (West 2008). The presumption that the best interest of

the child is served by awarding custody to a natural parent is deeply embedded

in Texas law. In re V.L.K. , 24 S.W.3d 338, 341 (Tex. 2000), In re K.R.P. , 80 S.W.3d 669, 674 (Tex. App.—Houston [1st Dist.]

2002, pet. denied). That presumption is

rebutted, however, if the evidence at trial establishes that the appointment “would

not be in the best interest of the child because the appointment would

significantly impair the child’s physical health or emotional development.” Tex.

Fam. Code Ann. § 153.131(a).

This “does not necessarily require proof of a parent’s blameworthy

conduct as a prerequisite to appointment of a nonparent as managing

conservator.” In re R.T.K. , 324 S.W.3d 896, 902 (Tex. App.—Houston [14th Dist.]

2010, pet. filed). Instead, the statute

addresses only the effect of a parent’s appointment on the child. Id.

There was conflicting testimony at the hearing about where

C.M. had lived over the years. McPherson

testified that C.M. had lived with him and Caroline Hollyer for the first year

of her life. After that year, they all

moved in with McPherson’s father.

Shortly thereafter, Caroline Hollyer moved out. Some time later, McPherson began attending

college in Galveston, where he obtained an apartment. He also testified that C.M. had lived with

his mother since C.M.’s first year.

Caroline Hollyer testified that C.M. had lived with Ruth

Hollyer all of C.M.’s life.

Ruth Hollyer testified that C.M. had lived with her since

C.M. was one year old. All the parties

agreed that C.M. had health insurance under Ruth Hollyer’s insurance. Ruth testified that she was only able to put

C.M. on her insurance because C.M. lived with her.

All the parties agreed that, from August 2008 until the

hearing, C.M. resided with McPherson’s mother.

Ruth Hollyer testified that McPherson picked up C.M. from daycare for an

agreed-upon visitation period and later refused to return C.M. to her. McPherson denied that C.M. had ever lived

with Ruth Hollyer, so there was no reason to return C.M. to her.

Ruth Hollyer testified that the period that McPherson took

possession of C.M. and kept her at his mother’s home was traumatic for C.M. and

C.M. expressed that to Ruth Hollyer.

C.M. also exhibited physical reactions to the trauma including a swollen

lip from continuously biting her lower lip.

McPherson also testified that he was still in school at

the time of the hearing, that he would continue to live in Galveston for at

least a couple of days out of the week, that his mother would take care of C.M.

while he was not there, and that he would reside with his mother and C.M. while

he was there. Because he did not have a

job while he was in school, he would give his mother money when he could from

scholarships, retention funds, grants, and student loans. He had a job from “2003 to almost 2005” and

after that did some work giving private baseball lessons and working at his

father’s baseball camps during the summer.

He admitted that he had never given Ruth Hollyer money for C.M.’s care,

but testified that he had given his mother money.

McPherson’s mother was not a party to the suit, did not

testify, and did not seek any assignment of custody for C.M. There was no other testimony about whether

McPherson’s mother had the means to provide for C.M. beyond what McPherson

occasionally provided her. Additionally,

there is no evidence of McPherson’s mother’s ability to provide care for C.M.

or even that she wanted to be C.M.’s primary caretaker while McPherson was in

school.

In contrast, Ruth Hollyer testified that she had been

working for Shell Oil Company for 30 years as an engineering associate. She was the party to first bring this action

and asked the court to assign her as the sole managing conservator. She testified that she had provided for C.M.

since C.M. was one, including enrolling her in day care, obtaining and paying

for health insurance, and taking her to doctor’s appointments.

On appeal, McPherson does not challenge any of the trial

court’s findings of fact, including:

4. The

Court finds by clear and convincing evidence that the child, [C.M.], has lived

with Petitioner, RUTH HOLLYER, the child’s Maternal Grandmother, for the

majority of the child’s life from the time the child was one (1) year[] old

until the Summer of 2008, for a period of approximately four (4) years.

5. The

Court finds by clear and convincing evidence that Petitioner[,] RUTH HOLLYER,

has supported the child financially the majority of the child’s life. The Court finds by clear and convincing

evidence that Respondent, BRENT MCPHERSON, although he has been employed at

various times, has not supported the child, [C.M.], financially during any

period of time that the child was in possession of Petitioner, RUTH HOLLYER . . . .

. . .

11. The

Court finds by clear and convincing evidence that the appointment of

Petitioner, RUTH HOLLYER, as sole managing conservator of the child would be in

the best interest of the child, [C.M.]; and that appointment of the parents,

CAROLINE HOLLYER and BRENT MCPHERSON, as sole managing conservator of the

child, [C.M.] would not be in the best interest of the child because the

appointment would significantly impair the child’s health or emotional development.

An unchallenged finding, when supported by the

evidence, is binding on an appellate court.

In re K.R.P. , 80 S.W.3d at

675 .

There was conflicting evidence about where C.M. had resided

from the age of one until the summer of 2008.

When there is conflicting evidence, it is the province of the factfinder

to resolve such conflicts. See Wilson , 168 S.W.3d at 820 . Because McPherson does not challenge the

finding that C.M. lived with Ruth Hollyer from the age of one until the summer

of 2008 and because nothing in the record suggests the trial court could not

have resolved the conflicting testimony this way, we are bound by this

finding. See In re K.R.P. , 80 S.W.3d at 675 .

McPherson admitted that he had worked at least

periodically over the years and that he had never given Ruth Hollyer money for

C.M.’s care. There is evidence in the

record, then, to support the trial court’s finding that “although he has been

employed at various times, [he] has not supported the child, [C.M.],

financially during any period of time that the child was in possession of

Petitioner, RUTH HOLLYER.” Accordingly,

this finding is also binding.

There is no evidence to suggest that Ruth Hollyer is unfit

to care for and raise C.M., as she had done from the time C.M. was one. Additionally, Caroline Hollyer has not sought

sole or joint managing conservatorship of C.M.

We are left to determine, then, whether there is sufficient evidence in

the record to support the finding that appointing McPherson the sole managing

conservator of C.M. would significantly impair C.M.’s health or emotional

development.

In In re K.R.P. ,

we held that it is not unreasonable for a trial court to conclude “that a

separation of the child from the only person who was consistently cared for her

for the majority of her life would ‘significantly impair’ the child’s emotional

development.” Id. at 677 . Similarly, the

Fourteenth Court of Appeals held in In re

R.T.K. that the trial court could have reasonably concluded “that removal

of R.T.K. from ‘the only home he has known’ would significantly impair his

emotional development.” 324 S.W.3d at

905 .

Additionally, while not determinative, failure of a parent

to financially support a child is a factor to be considered by the trial court

in awarding custody. Clements v. Schaeffer , 360 S.W.2d 906,

908 (Tex. Civ. App.—San Antonio 1962, no writ); see also Thomas v. Thomas , 852 S.W.2d 31, 36 (Tex. App.—Waco 1993,

no writ) (considering father’s failure to provide financial support for child

for three year period in affirming award of sole managing conservatorship to

maternal grandmother).

Viewing the evidence in the light most favorable to the

trial court’s ruling, the evidence established that C.M. lived with Ruth

Hollyer from the age of one until the age of five. C.M. exhibited emotional and physical trauma

when she was taken away from Ruth Hollyer by McPherson to live at McPherson’s

mother’s home. McPherson did not provide

any child support to Ruth Hollyer during this time, even though he was employed

at least occasionally during this time.

Instead, Ruth Hollyer provided for C.M., including enrolling her in day

care, obtaining and paying for health insurance, and taking her to doctor’s

appointments.

Additionally, the evidence at the hearing established

that, while C.M. was purportedly in McPherson’s care from August 2008 until the

time of the hearing, C.M. was in fact being cared for primarily by McPherson’s

mother. McPherson lived in Galveston for

at least two days out of each week. His

mother would take care of C.M. while he was not there, and he would reside with

his mother and C.M. while he was there.

There is no evidence regarding McPherson’s mother’s ability or

willingness to care for C.M. in McPherson’s stead. McPherson was able to provide support for

C.M. only periodically, using what money remained from scholarships, retention

funds, grants, and student loans.

We hold that the trial court did not abuse its discretion

in finding that appointing McPherson as sole managing conservator of C.M. would

not be in her best interest because the appointment would significantly impair

her health or emotional development. See Tex.

Fam. Code Ann. § 153.131.

We overrule appellant’s second point of error.

McPherson’s Possessory Rights

In his third point of error, appellant argues that there

is no evidence in the record supporting the trial court’s decision to restrict

his possessory rights and that the trial court should have granted “standard

possession under the Texas Family Code Guidelines.”

A party claiming error on appeal must present a concise

argument for the contentions made with appropriate citations to authorities and

to the record. Tex. R. App. P. 38.1(i).

In the one paragraph devoted to this point of error, appellant fails to

provide a specific citation to any portion of the record or any legal

authority. Instead, appellant refers

generally to argument in his second point of error.

Appointment of a non-parent as a sole managing conservator

is a distinct inquiry from restricting a parent’s rights as a possessory

conservator. They are governed by

separate statutory requirements. Compare Tex. Fam. Code Ann. §§ 153.131–.138, .371–.377 (West

2008 & Supp. 2010) with Tex. Fam. Code Ann. §§ 153.191–.317

(West 2008 & Supp. 2010). Authority

for one does not stand in for the other.

“The failure to adequately brief an issue, either by

failing to specifically argue and analyze one’s position or provide authorities

and record citations, waives any error on appeal.” In re

B.A.B. , 124 S.W.3d 417, 420 (Tex. App.—Dallas 2004, no pet.) We hold that McPherson has waived any error

in the trial court’s restriction on his possessory right.

We overrule appellant’s third point of error.

Conclusion

We affirm the judgment of the trial court.

Laura

Carter Higley

Justice

Panel consists of Justices Jennings, Higley, and Brown.

[1] The settlement agreement is not a part of the appellate

record. What information there is about

the contents of the settlement agreement is derived from testimony at the

hearing to establish conservatorship.