COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00202-CV
ROCKY BENTON KIMBELL APPELLANT
V.
APRIL KATHLEEN KIMBELL APPELLEE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2012-10583-16
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MEMORANDUM OPINION 1
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This appeal stems from the trial court’s divorce decree and order in suit
affecting the parent-child relationship (SAPCR). In the final decree, the trial court
appointed the parents joint managing conservators (JMCs) of the children and
designated Appellee April Kathleen Kimbell (Mother) as the JMC with the
1
See Tex. R. App. P. 47.4.
exclusive right to determine the primary residence of the former couple’s two
minor children. Appellant Rocky Benton Kimbell (Father) timely appealed,
challenging Mother’s designation as JMC. Because we hold that Father invited
the alleged error he complains of, we affirm.
Mother and Father began dating and living together in 2002. In 2004,
Mother was accepted into nursing school and ended the relationship. She then
began dating another man (Husband One) and subsequently married him. The
marriage lasted two weeks. Shortly after Mother learned that Husband One
already had another wife and child in Mexico, she threw a plastic coat hanger at
him. Mother was arrested and charged, but she testified that the charge was
later dismissed due to lack of evidence.
Mother and Father began dating again in the summer of 2006, and they
married in August 2007. Their two children were born in 2008 and 2011,
respectively. Father testified that in June 2012, Mother bloodied his lip and left
scratches on his neck, but he did not seek medical attention. He did file a police
report with the Carrollton Police Department. Mother testified that she was not
arrested for that incident but was convicted of Class C Assault. 2 She also
testified that the conviction was being appealed at the time of the divorce and
SAPCR trial. In addition to naming her JMC with the exclusive right to determine
the primary residence of the children, the trial court also ordered Mother to attend
2
See Tex. Penal Code Ann. §22.01(a)(2)–(3), (c) (West Supp. 2014).
2
anger management class and to submit proof thereof to the court. The trial court
ordered Father to childproof the home of his grandparents, where he would stay
during his periods of possession of the children, and to submit proof thereof. The
trial court ordered both parents to abstain from drinking during their respective
periods of possession of the children.
In his sole issue, Father contends that the trial court abused its discretion
by appointing Mother JMC because credible evidence was presented of a history
or pattern of past or present physical abuse by Mother against Father as well as
against Husband One. 3 But Father’s live petition provides, “Petitioner and
Respondent, on final hearing, should be appointed joint managing conservators,
with all the rights and duties of a parent conservator.” The invited error doctrine
prevents a party from asking for relief from the trial court and later complaining
on appeal that the trial court gave it. 4 We therefore overrule Father’s sole issue.
Having overruled Father’s sole issue, we affirm the trial court’s judgment.
3
See Tex. Fam. Code Ann. § 153.004(b) (West 2014).
4
Swain v. Hutson, No. 02-09-00038-CV, 2009 WL 3246750, at *6 (Tex.
App.—Fort Worth Oct. 8, 2009, pet. denied) (mem. op.); McKee v. McKee, No.
02-06-00436-CV, 2008 WL 110112, at *4 (Tex. App.—Fort Worth Jan. 10, 2008,
no pet.) (mem. op.); Clopton v. Airport Marina Hotel, Inc., No. 02-05-00055-CV,
2006 WL 2309638, at *3–4 (Tex. App.—Fort Worth Aug. 10, 2006, pet. denied)
(mem. op.), cert. denied, 552 U.S. 893 (2007); see also Litton Indus. Prods., Inc.
v. Gammage, 668 S.W.2d 319, 321–22 (Tex. 1984) (“By filing its motion that the
trial court render judgment on the verdict for the actual damages found by the
jury, Litton could not, on appeal, take a position inconsistent with that part of the
judgment.”).
3
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: August 6, 2015
4