OPINION
This pro se appeal involves the standard the court must apply when a non-parent asks to be appointed managing conservator of a minor child. Following the jury findings, the trial court appointed P.W., a non-parent, as managing conservator of W.G.W. The mother, L.A.J., who was represented at trial by an attorney, brings this appeal pro se, asserting four points of error. On our own motion we identify the parties by fictitious names. TEX.FAM.CODE ANN. Sec. 11.19(d) (Vernon 1986).1 We reverse and remand for a new trial.
L.A.J. ("the Mother") and P.W. ("Patrick") were married for one year and had a daughter, Wendy. The marriage ended in 1981, and Patrick was appointed the sole managing conservator of Wendy. Patrick got custody of their daughter by default judgment, because the Mother could not afford a lawyer. The Mother moved out after the divorce, but two years later, when she became pregnant with W.G.W., the child in this suit, she moved back with Patrick. Patrick is not the biological father of W.G.W.; everyone admits that another man, not involved in this litigation, is the biological father. W.G.W. bears the same last name as Patrick because, at the time of his birth, the Mother was still using Patrick's last name.
The Mother lived with Patrick, their daughter Wendy, and W.G.W. until W.G.W. was six months old. During that period there was conflict between the Mother and Patrick: the Mother claims Patrick was often intoxicated and violent; Patrick claims the Mother had male visitors while W.G.W. was present.
The Mother moved out of Patrick's house, and in 1986 moved to Waco, where she lived with O.W. Holmes, Jr.,2 and W.G.W. In 1988, while in Waco, the Mother was diagnosed with cervical cancer. She came to Houston for a second opinion and for an operation, and left W.G.W. with Patrick. During the Mother's recuperation from the operation, Patrick decided to file for conservatorship of W.G.W.
At the time of trial, the Mother had lived continuously with Holmes since 1988, and they planned to marry. The Mother testified that, during those years, W.G.W. spent more time with Holmes than with Patrick. When asked why she permitted Patrick to have access to W.G.W. even though he was not W.G.W.'s father, the Mother said that she wanted W.G.W. to have a relationship with a male figure, and she wanted him to see his sister, Wendy, who lived with Patrick.
Holmes testified to the love and affection surrounding W.G.W. He stated that W.G.W. enjoyed a stable routine and was a disciplined child when in the care of the Mother. A personal friend of the Mother stated that the Mother was the primary caretaker throughout W.G.W.'s life and alleged that Patrick was once in an intoxicated state while W.G.W. was in his care. Holmes' father stated that W.G.W. enjoyed a close loving relationship with the Mother and his son. Holmes' sister testified that the Mother was a caring mother and provided W.G.W. a disciplined and structured home environment. The Mother's mother testified that she enjoyed a close relationship with W.G.W.
Patrick elicited testimony that the Mother changed residences a number of times after W.G.W. was born.3 Patrick also complained *Page 412 that the Mother had two steady male companions after she left him.4 Patrick testified that the Mother did not provide a stable environment for W.G.W. and considers himself the "father" since birth. Patrick claimed that the Mother attacked him with a knife in front of W.G.W., when he was a few months old.
Patrick's next door neighbors testified that while the Mother was living with Patrick shortly after the birth of W.G.W., the Mother had male visitors at the house during the day when Patrick was at work.5 The neighbors also said that the Mother went out at night, leaving W.G.W. in Patrick's care.6 The neighbors also stated that Patrick had more physical contact with W.G.W. than the Mother and that W.G.W. calls Patrick "Daddy," and felt that it would be in W.G.W.'s "best interest to be with" Patrick. They testified to various arguments between the Mother and Patrick, detailing one incident in which the Mother brandished a fireplace poker and threatened Patrick.
Ms. McCullough, a woman who operates a licensed day care center, which W.G.W. attended between the ages of three and five and a half, testified for Patrick. McCullough recited that she was a licensed day care director, had taken about 146 hours of college courses in psychology and early childhood development, had six years experience in day care operation, 10 years experience as a substitute school teacher, and two years experience as a teacher's aide for emotionally disturbed children. She stated that, from her education and experience, she could determine what was normal emotional and psychological development for children between the ages of four to six.
McCullough testified that, when she first met W.G.W., he had a discipline problem. She said that W.G.W. was emotionally and academically behind his peers at age three. She did not think W.G.W. had the ability to interact with his peers; that he was unduly angry, and did not participate in group activities. She thought W.G.W. improved emotionally while under Patrick's care, and regressed when under the Mother's care. She found that the Mother was uncooperative with the suggestions McCullough provided for improving W.G.W.'s psychological and emotional development. She thought the Mother had a "bad attitude" toward these matters and regarded W.G.W.'s behavioral problems as a "joke." McCullough noticed that W.G.W. was torn emotionally between the structured and supportive environment provided by Patrick, as contrasted with the erratic or unstructured environment provided by the Mother.
Patrick sought appointment as W.G.W.'s sole managing conservator. Under TEX.FAM.CODE ANN. Sec. 11.03(a)(8) (Vernon Supp. 1991) and TEX.FAM.CODE ANN. Sec. 11.13(a) (Vernon 1986), the fact issues of Patrick's standing to bring the suit and the statutory elements required for his appointment were tried to a jury. The proceeding was governed by TEX.FAM.CODE ANN. Sec.14.01(b) (Vernon Supp. 1991), which provides:
(b) A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless:
(1) the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development. . . .
The jury was asked in two questions:
*Page 4132. Do you find from a preponderance of the evidence that the appointment of [the Mother] as managing conservator would
not be in the best interest of the child because the appointment would significantly impair the child's health or emotional development?
Answer: "We do" or "We do not"
ANSWER: WE DO
3. Do you find from a preponderance of the evidence that the appointment of [Patrick] as managing conservator would be in the best interest of the child? . . . .
Answer: "We do" or "We do not"
ANSWER: WE DO I. Challenges to the sufficiency of the evidence The right to raise one's children has been deemed an "essential right," and a "basic civil right of man" and woman.Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972); Prokopuk v.Offenhauser, 801 S.W.2d 538, 539 (Tex.App. — Houston [1st Dist.] 1990, writ denied). The presumption that the best interest of a child is served by awarding custody to a natural parent is deeply embedded in Texas law. Lewelling v.Lewelling, 796 S.W.2d 164, 166 (Tex. 1990). The natural right between parent and the child is one of constitutional dimensions and should not be disturbed except for the most compelling and serious reasons. Cooper v. Texas Dep't ofHuman Resources, 691 S.W.2d 807, 808 (Tex.App. — Austin 1985, writ dism'd). The law presumes that the interest of young children are best served by naming their natural parents as managing conservator. Mumma v. Aguirre,364 S.W.2d 220, 221 (Tex. 1963).
The party seeking to bar the natural parent from appointment as managing conservatorship has the burden to show that the best interest of the child would be best served by the appointment of a non-parent. Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex. 1966). To restate the standard in terms of Sec. 14.01(b) of the Code, the party seeking to bar the natural parent from appointment as managing conservator must prove that the appointment of the parent would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development. Lewelling, 796 S.W.2d at 166; TEX.FAM.CODE ANN. Sec. 14.01(b)(1). That another person would be a better custodian of a child is not enough to rebut the parental presumption absent the impairment of physical health or emotional development. Lewelling, 796 S.W.2d at 167.
Patrick bore the burden of proof on the jury's findings. The supreme court requires Patrick, as a non-parent, to identify some act or omission committed by the Mother which demonstrates that naming her as managing conservator will significantly impair W.G.W.'s physical health or emotional development.Lewelling, 796 S.W.2d at 168.
A. Legal sufficiency In point of error one, the Mother urges there was no evidence to support the jury's finding to question two, that appointing her as managing conservator would significantly impair the child's physical health or emotional development. When reviewing a legal sufficiency or "no evidence" point, we must consider only the evidence and inferences, when viewed in their most favorable light, that tend to support the finding, and disregard all evidence and inferences to the contrary.Lewelling, 796 S.W.2d at 166; Texaco, Inc. v.Pennzoil, Co., 729 S.W.2d 768, 787 (Tex.App. — Houston [1st Dist.] 1987, writ ref. n.r.e.). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Lewelling, 796 S.W.2d at 166. If the evidence does more than create a mere surmise or suspicion of its existence, there is more than a "scintilla" of evidence. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
The jury was required to return an answer favoring the Mother unless they found that her appointment "would significantly impair the child's physical health or emotional development." TEX.FAM.CODE ANN. Sec. 14.01(b)(1). The best interest of the child is always the primary consideration in deciding the question of managing conservatorship. TEX.FAM.CODE ANN. Sec. 14.07(a) (Vernon 1986). *Page 414 From the evidence outlined above, under this point we must consider only the evidence that supports the finding that the appointment of the Mother "would significantly impair the child's physical health or emotional development." When we look at the record with that restriction, the only evidence we can find that supports the finding is that given by McCullough. We find that her testimony was more than a scintilla, enough to overrule a no evidence point.
We overrule point of error one.
B. Factual sufficiency In point of error two, the Mother contends there is insufficient evidence to support the jury's finding to question two.7 Patrick had the burden of proof on the jury question. Because the burden was his, he was required to secure a finding that was based on the preponderance of the evidence. Because the jury found in favor of the questions on which Patrick had the burden of proof, the Mother must now argue that Patrick did not carry his burden and prove the issues by a preponderance of the evidence. Thus, her points are properly cast as "insufficient evidence" points of error.8 Under such a challenge, we must examine all of the evidence — the evidence that favors and the evidence that disfavors — the jury's finding and, if we decide the evidence is so weak that the jury's finding is clearly wrong and unjust, only then should we set aside the verdict.9 Pool v. FordMotor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v.Bain, 709 S.W.2d 175, 176 (Tex. 1986).
This Court must now consider all the evidence in the record, both the evidence that supports the finding and the evidence that contradicts the finding.
The record as a whole supports the following conclusions: The Mother and Patrick had an unsuccessful marriage; after the divorce, when the Mother found herself pregnant, Patrick agreed she could move in with him, not in an attempt to restore the marriage, but simply for convenience; after W.G.W. was born, she continued to live with Patrick; during the time they lived together, they did not get along, and at times abused each other; after the Mother left Patrick's house, she moved around a number of times; both of them care for W.G.W. very much; at the time of the trial, the Mother had a long-term relationship with another person, whom she intended to marry.
Although Patrick and his witnesses testified that the Mother had male friends at the house, the prejudicial effect of such testimony is lessened by Patrick's testimony that his relationship with the Mother when she moved back into the house was not an attempt to revive the marriage, but simply to help her out. In addition, no one testified that the Mother had overnight visitors or that the mother and the visitors behaved in any improper way in front of W.G.W., who was between three and six months of age at the time.
In light of all the evidence presented, we hold that the jury's finding on question two, that the appointment of the Mother as managing conservator would significantly *Page 415 impair the child's health or emotional development, is against the great weight and preponderance of the evidence, is clearly wrong, and is manifestly unjust. We sustain point of error two.
II. Prejudicial evidence In point of error three, the Mother contends the trial court erred in overruling her motion for new trial. In her motion for new trial, the Mother claimed the court permitted the introduction of evidence over her objection which was extremely prejudicial to her defense.10 The Mother contends that Patrick violated a motion in limine and she was "severely prejudiced" by his "extremely prejudicial accusations."
A. The documentary evidence The court granted the Mother's motion in limine to prevent Patrick from referring to or alluding to documents not tendered in discovery. The Mother contends Patrick was permitted to "page through" certain documents in front of the jury and ask the Mother about matters in the documents. Through that tactic, the Mother contends the documents were shown to the jury. A review of the statement of facts, pages 45 through 46, reveals that the Mother's objection to documents was sustained. There is no objection to Patrick's counsel paging through documents in front of the jury. We overrule the first contention under the Mother's point of error three.
B. The prejudicial remarks of counsel In the second contention under her point of error three, the Mother alleges she was harmed by three prejudicial statements of opposing counsel. We deal with them under separate headings.
1. The prejudicial question Patrick's counsel asked the Mother, "Since the birth of W.G.W., have you had any abortions?" The Mother's counsel objected, the objection was sustained, and the trial court instructed the jury to disregard the form of the question. A few minutes later, Patrick's counsel again asked the question, and again the Mother's counsel objected. Counsel for Patrick explained the reason for the question as "It goes to her credibility and her stability." The court sustained the objection, but the Mother's counsel did not ask for a second instruction to disregard the question.
The Mother complains that the question about abortions was completely unprovoked and was not curable. To obtain reversal of a judgment on the grounds of an improper question posed by counsel, an appellant must prove that the question was so prejudicial and inflammatory as to reasonably be calculated to produce an improper verdict. See Niemann v. State,471 S.W.2d 124, 130 (Tex.App. — San Antonio 1971, no writ). We hold, on this record, that the questions asking the Mother if she had had abortions was improper, prejudicial, and reasonably calculated to produce an improper verdict. We sustain the point of error as to the questions about abortion.
2. The side-bar remarks Holmes' sister testified that she had a child just about the same age as W.G.W., that she stayed at the Mother's apartment some weekends, that the apartment had a pool, and that the children played together. Following the question whether she lived with the Mother, she said no, that she "woke up some mornings with her," Patrick's counsel made the side bar comment, "I bet." The Mother's counsel objected and the objection was sustained. On appeal, the Mother complains that the *Page 416 side bar comment amounted to an "insinuation that the Mother had engaged in homosexual activities with Ms. [Holmes]."
Rule 269 states that the trial court will rigidly repress side bar remarks. The court is not required to wait for an objection when rule 269 is violated. Side bar remarks are remarks of counsel that are neither questions to the witness nor comments addressed to the court. Middleton v.Palmer, 601 S.W.2d 759, 763 (Tex.App. — Dallas 1980, writ ref'd n.r.e.). They are condemned because of their risk of error. Id. Not every side bar remark, however, is grounds for reversal. Id. To obtain reversal of a judgment on the basis of improper side bar comment, an appellant must prove the side bar remark interferes with the appellant's right to a fair trial. Id. Here, the inference of homosexual conduct was oblique. We cannot say that the meaning of the side bar remark was clear to the jury. Thus, we overrule the point of error as it relates to the side bar remark.
3. The prejudicial jury argument In Patrick's closing argument, his counsel said, "Think about cervical cancer and how you get it." The Mother's counsel made no objection to this statement. The Mother contends that this alleged statement was designed to "inflame the jury."
The Mother complains that the statement about cervical cancer was completely unprovoked and was not curable. To obtain reversal of a judgment on the basis of improper jury argument, the supreme court has instructed us that an appellant must prove four of the elements set out in Standard Fire Ins.Co. v. Reese, 584 S.W.2d 835, 839-40 (Tex. 1979).
Was the argument error? After examining the record, we can find nothing that supports the inference that cervical cancer is caused by immoral conduct or abortions, the clear implication of counsel's statement. We hold this argument was error.
Was the argument invited or provoked? Counsel for Patrick was the first to argue to the jury. After examining the record we find nothing that preceded the argument that could possibly justify the statement. We hold the argument was not invited or provoked.
Was the argument, by its nature, degree, and extent, reversible error? After examining the record, we hold that the cumulative effect of the statement, with Patrick's attempt to paint the Mother as an immoral woman, constituted harmful error.
Did the appellant preserve an objection to the erroneous argument by the proper trial objection? The Mother's counsel did not object to the argument, and thus did not preserve error. In such a case, the Mother must show that the error was not curable, the last of our inquiries.
Was the error curable by an instruction? Because the Mother's counsel did not object, if she is to prevail on this point of error, she must show that the error was not curable. There are only rare instances of incurable harm from improper argument. Reese, 584 S.W.2d at 839. The appellate court must determine if the probability that the improper argument caused harm is greater than the probability that the verdict was based upon proper proceedings and evidence.Id. at 840. The appellate court must evaluate the improper jury argument in light of the whole case, beginning with voir dire and ending with closing argument. Luna v.North Star Dodge Sales, Inc., 667 S.W.2d 115, 120 (Tex. 1984); Reese, 584 S.W.2d at 839.
We hold that the remark probably contributed to the jury's finding that the Mother, as managing conservator, would significantly impair the child's physical health or emotional development. We sustain her third point of error challenging the improper jury argument.
4. Explanatory definition In point of error four, the Mother urges that the trial court erred in refusing to submit to the jury an explanatory definition of "significantly impair." The Mother objected to the absence of a definition and tendered a definition based on the law found in Neely v. Neely, 698 S.W.2d 758, 759 (Tex.App. — Austin 1985, no writ) and Cooper, 691 S.W.2d at 811. Thus, by submitting *Page 417
a requested definition, the Mother met her burden to properly object to the absence of a definition in the charge.Yellow Cab and Baggage Co. v. Green, 277 S.W.2d 92, 93 (Tex. 1955); Texas Gen. Indem. Co. v. Moreno, 638 S.W.2d 908, 914 (Tex.App. — Houston [1st Dist.] 1982, no writ); Swenson v. Swenson, 466 S.W.2d 424, 427 (Tex.App. — Houston [1st Dist.] 1971, no writ); TEX.R.CIV.P. 274, 279.
The definition derived from the holdings from Neely and Cooper was:
Neely, 698 S.W.2d at 759; Cooper, 691 S.W.2d at 811."Significantly impair the child's health or emotional development" usually means evidence of physical abuse, severe neglect, abandonment, drug or alcoholic abuse, or very immoral behavior on the part of the parent. The natural rights between a parent and a child should be disturbed for only the most compelling and serious of reasons.
In response to the objection and tender, the trial court stated it felt that "the example cited in Neely andCooper are not all inclusive and further, that the words are of ordinary understanding" and overruled the objection. Patrick argues that jurors are presumed to have average intelligence, so the court is "not required to convert the charge into a dictionary," citing Texaco, Inc., 729 S.W.2d at 814.
To determine whether an error in the jury charge is reversible, the appellate court must consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Island Recreational Dev. Corp. v. Republicof Texas Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986). We will deem error reversible only if, when viewed in light of the totality of the circumstances, we find it amounted to such a denial of the rights of the complaining party that it was reasonably calculated to and probably did cause the rendition of an improper judgment. Id.; TEX.R.APP.P. 81(b)(1).
Rule 277 of the Texas Rules of Civil Procedure directs "the court shall submit such instructions and definitions as shall be proper to enable the jury to enter a verdict." Patrick argues that by highlighting that such cases usually include evidence of physical abuse, severe neglect and chemical abuse, the judge would have been suggesting to the jury to find in the Mother's favor because those items of evidence were absent from this case.
The trial court has considerable discretion in deciding which instructions and definitions are necessary and proper.Johnson v. Whitehurst, 652 S.W.2d 441, 447 (Tex.App. — Houston [1st Dist.] 1983, writ ref'd n.r.e.). An appellant cannot show an abuse of discretion unless the requested instructions were so necessary to enable the jury to render properly a verdict that the court's refusal probably did cause rendition of an improper verdict. Steinberger v.Archer County, 621 S.W.2d 838, 841 (Tex.App. — Fort Worth 1981, no writ).
In this case, the jury was presented with a charge that required them to decide if the Mother would "significantly impair" the child's health or emotional development without any guidance as to the meaning of that term. The result of the entire case hinged on what conduct is considered so detrimental to the child's interest that it would significantly impair the child's health or emotional development. The charge, without that definition, did not inform the jury what standard to apply to properly weigh the evidence and return a proper verdict. Thus, we sustain point of error four.