COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-021-CV
JEFFREY I. RUBINETT APPELLANT
V.
SHARON M. RUBINETT APPELLEE
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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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This appeal stems from the divorce of Appellant Jeffrey I. Rubinett and
Appellee Sharon M. Rubinett, parents of minor son Joshua. The parents were
named joint managing conservators (JMCs) of Joshua, but Sharon was awarded
the exclusive right to establish his primary residence as well as other exclusive
rights. In five issues, Jeffrey complains that the trial court abused its discretion
1
… See Tex. R. App. P. 47.4.
by awarding Sharon those exclusive rights, by ordering the visitation schedule
set out in the decree, by awarding Sharon attorney’s fees, and by requiring him
to make accountings to Sharon for the Texas Tomorrow Fund account he set
up with his separate property. Because we hold that the trial court did not
abuse its discretion, we affirm the trial court’s judgment.
In his first issue, Jeffrey contends that the trial court abused its discretion
by appointing Sharon the JMC with the exclusive right to establish Joshua’s
primary residence because insufficient evidence supports that finding. In his
second issue, Jeffrey challenges the trial court’s orders giving Sharon the
exclusive rights (1) to consent to medical, dental, and surgical treatment
involving invasive procedures and to consent to psychiatric and psychological
treatment of the child; (2) to receive and give receipt for periodic payments for
the support of the child and to hold or disburse these funds for the benefit of
the child; (3) to represent the child in legal action and to make other decisions
of substantial legal significance concerning the child; (4) to consent to marriage
and to enlistment in the armed forces of the United States; and (5) except as
provided by section 264.0111 of the Texas Family Code, to receive the
services and earnings of the child. He contends that the trial court’s award of
these rights to Sharon is not in Joshua’s best interest, violates the public policy
of the State of Texas as set out in the family code, is contrary to the parenting
2
plans submitted by the parties, and is unsupported by any pleadings of the
parties.
Section 153.134 of the family code provides,
(b) In rendering an order appointing joint managing
conservators, the court shall:
(1) designate the conservator who has the exclusive
right to determine the primary residence of the child . . . ;
(2) specify the rights and duties of each parent
regarding the child’s physical care, support, and education;
(3) include provisions to minimize disruption of the
child’s education, daily routine, and association with friends; [and]
(4) allocate between the parents, independently, jointly,
or exclusively, all of the remaining rights and duties of a parent as
provided by Chapter 151.2
The trial court has discretion to allocate the rights and duties of the
parents in a suit affecting the parent-child relationship.3 The trial court’s
judgment will not be disturbed on appeal unless there has been an abuse of
discretion.4 An abuse of discretion does not occur when the trial court bases
2
… See Tex. Fam. Code Ann. § 153.134(b) (Vernon 2008).
3
… See Mize v. Mize, No. 02-08-00163-CV, 2009 WL 279335, at * 5–6
(Tex. App.—Fort Worth Feb. 5, 2009, no pet.) (mem. op.).
4
… In re Marriage of Jeffries, 144 S.W.3d 636, 638–39 (Tex.
App.—Texarkana 2004, no pet.).
3
its decisions on conflicting evidence. 5 Furthermore, an abuse of discretion does
not occur as long as some evidence of substantive and probative character
exists to support the trial court’s decision.6
The child’s best interest guides the determination of all conservatorship
issues.7 The trial court is in a better position than a reviewing court to
determine what will be in the best interest of the child since it observed the
parties and witnesses and their demeanor and had the opportunity to assess
each parent’s claims.8
Jeffrey contends that the trial court abused its discretion by naming
Sharon as the JMC with the exclusive right to determine Joshua’s domicile.
The only evidence Jeffrey seems to base this contention on is that Sharon is a
flight attendant who is away from home about twelve days a month while he,
as a veterinarian who sets his own schedule in East Fort Worth, could be at
home with Joshua every day.
5
… In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding).
6
… Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
7
… Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002).
8
… In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet.
denied).
4
The trial court heard evidence that Sharon had been employed by Delta
Airlines for about twenty years, that her work schedule was Thursday through
Saturday but was flexible, and that she and Jeffrey had designed their work
schedules from the time she went back to work after Joshua’s birth with his
care in mind. Susan Goldstein, who performed the social study, testified that
if one parent had to be designated as the parent with the exclusive right to
determine Joshua’s primary residence, she would choose Sharon because
Sharon would encourage flexibility and encourage Joshua to have a relationship
with his father.
In the divorce decree, the trial court awarded regular possession of
Joshua to Jeffrey beginning at 5:00 p.m. on Wednesday and ending at 5:00
p.m. on Saturday; this time period encompasses Sharon’s typical periods of
time away from home due to her work. Based on the above, we cannot hold
that the trial court abused its discretion by awarding Sharon the exclusive right
to determine the primary residence of the child. We overrule Jeffrey’s first
issue.
Regarding the other rights awarded exclusively to Sharon, Sharon testified
that Jeffrey had a tendency to self-medicate and that he had once performed
invasive surgery on himself. Evidence from other witnesses supported Sharon's
testimony that Jeffrey could be manipulative, controlling, and obsessive with
5
Joshua. Susan Goldstein testified that Jeffrey “inflated his own value in [the]
child’s life” and deflated Sharon’s value. Sharon testified that Jeffrey belittled
and disrespected her in front of Joshua and told their son that she was
divorcing “them.” There was also evidence that Jeffrey earned a higher income
than Sharon. Further, we note that Jeffrey does not point to any specific
evidence supporting his contention that the trial court’s award of these
exclusive rights to Sharon was not in Joshua’s best interest.
Regarding Jeffrey’s contention that Sharon’s pleadings do not support the
trial court’s awarding her exclusive rights other than the rights to establish
domicile and to receive and give receipt for child support, the trial court
concluded in the supplemental conclusions of law, “The Trial Court’s paramount
concern is the best interest of the child, and the formalities of the procedural
rules of pleading will not be used to defeat that interest.” The Texas Supreme
Court has held that “a suit properly invoking the jurisdiction of a court with
respect to custody and control of a minor child vests that court with decretal
powers in all relevant custody, control, possession and visitation matters
involving the child. The courts are given wide discretion in such proceedings.” 9
Similarly, our sister court has held that “[p]leadings are of little importance in
9
… Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967).
6
child custody cases and the trial court’s efforts to exercise broad, equitable
powers in determining what will be best for the future welfare of a child should
be unhampered by narrow technical rulings.” 10 Therefore, it is of no legal
consequence that Sharon did not plead or propose that she be given all the
rights that she ultimately received. We overrule Jeffrey’s second issue.
In his third issue, Jeffrey contends that the visitation schedule is not in
Joshua’s best interest, denies Jeffrey quality time with his child, violates the
public policy of this State, and is an abuse of discretion. (He also reiterates his
complaints that the trial court appointed Sharon as the JMC with the exclusive
right to determine the child’s primary residence, which we have already
resolved against him.) Jeffrey does not explain how the possession schedule,
which is quite more favorable to him than the standard possession order is to
parents not awarded the exclusive right to determine the child’s primary
residence, is not in Joshua’s best interest or why the modified standard
visitation order he proposes, which would give Joshua much less contact with
his mother, would be in Joshua’s best interest. We hold that the trial court did
not abuse its discretion by ordering a possession schedule that is very similar
10
… In re B.M., 228 S.W.3d 462, 465 (Tex. App.—Dallas 2007, no pet.).
7
to the possession schedule utilized by the parties while the divorce was
pending. We overrule Jeffrey’s third issue.
In Jeffrey’s fourth issue, he contends that the attorney’s fee award to
Sharon is not supported by the evidence and is an abuse of discretion. (He also
reiterates his complaints about the trial court’s giving Sharon exclusive rights
that she did not request in her pleadings, which we have already resolved
against him.) In contending that the trial court abused its discretion by
awarding attorney’s fees, Jeffrey focuses on the fact that he and Sharon had
agreed on the division of the marital estate and argues that he should not be
punished for litigating the issue of which parent should have the exclusive right
to establish domicile.
A court may award attorney’s fees in a divorce action as part of a just
and right division of property.11 Whether the award is reasonable is a fact
issue, and the award must be supported by evidence. 12 An attorney’s
testimony alone can be sufficient evidence to support the award.13
11
… Sandone v. Miller-Sandone, 116 S.W.3d 204, 208 (Tex. App.—El
Paso 2003, no pet.).
12
… Id.
13
… Peeples v. Peeples, 562 S.W.2d 503, 506 (Tex. Civ. App.—San
Antonio 1978, no writ).
8
The trial court’s relevant findings provide:
28. The Trial Court finds . . . the division of the marital estate to
be a just and right division, based on the parties’
representation at trial that they had reached an agreement
regarding the division of the marital estate prior to trial.
29. The Trial Court found that good cause exists to award
[Sharon] a judgment in the amount of $7,500.00 for
attorney’s fees, expenses, and costs, with interest at
6% . . . per year compounded annually from the date this
Final Decree of Divorce is signed until paid in full. The
judgment, for which let execution issue, is awarded against
[Jeffrey] and [Jeffrey] is ORDERED to pay to [Sharon] at her
last known mailing or residential address the sum of
$7,500.00, plus interest, representing attorney’s fees,
expenses, and costs, by cash, cashier’s check, or money
order on or before the date this Final Decree of Divorce is
signed.
The stipulation announced on the record at the beginning of trial provided
that each party would keep the property in his or her possession and any
separate property would be confirmed as separate property; attorney’s fees
were not mentioned. As evidence of Sharon’s attorney’s fees, her lawyer
testified during trial that she had been licensed since 2001; that her hourly rate
was $275; that her paralegal’s hourly rate was $120; that $10,000 in
attorney’s fees was requested, reasonable, and necessary; and that the fee
requested represented several court appearances, drafting of pleadings and
discovery, communications with the client and opposing counsel, and trial.
9
Jeffrey did not cross-examine Sharon’s lawyer. We note that Jeffrey’s lawyer
also testified about his attorney’s fees.
Based on the above, we hold that the award of attorney’s fees is
supported by the evidence and that the trial court did not abuse its discretion
by awarding attorney’s fees to Sharon. We overrule Jeffrey’s fourth issue.
In his fifth issue, Jeffrey complains that the trial court abused its
discretion by requiring that he make accountings to Sharon for the Texas
Tomorrow Fund that he established with separate property. He contends that
the order violates the public policy of the State of Texas, infringes on his right
to use his separate property as he sees fit, and is not based on the pleadings.
The divorce decree provides,
IT IS ORDERED that Jeffrey I. Rubinett shall provide all
documentation, including but not limited to financial statements,
regarding the Texas Tomorrow Fund established for the benefit of
the child, Joshua Alan Rubinett, to Sharon Rubinett at her last
known mailing address within 15 days of Jeffrey I. Rubinett’s
receipt of said documentation.
The divorce decree also provides both Jeffrey and Sharon with “the right to
manage the estate of the child to the extent the estate has been created by the
parent or the parent’s family” and with “the right to receive information from
any other conservator of the child concerning the health, education, and welfare
of the child.” For the reasons expressed above, we reject Jeffrey’s argument
10
that the trial court abused its discretion by including an order not expressly
contemplated by the pleadings. 14 We also fail to see how requiring Jeffrey to
provide mere information about the status of the college fund he set up for
Joshua to Joshua’s mother infringes on Jeffrey’s rights to manage his own
separate property, affects Jeffrey’s right to manage any interest Joshua has in
the fund, violates public policy, or harms Jeffrey. We therefore overrule
Jeffrey’s fifth issue.
Having overruled all of Jeffrey’s issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
DELIVERED: May 14, 2009
14
… See Leithold, 413 S.W.2d at 701; B.M., 228 S.W.3d at 465.
11