Irene M. Vela v. Salvador Vela, Jr.--Appeal from County Court At Law No 1 of Webb County

MEMORANDUM OPINION
No. 04-07-00101-CV
Irene M. VELA,
Appellant
v.
Salvador VELA, Jr.,
Appellee
From the County Court at Law No. 1, Webb County, Texas
Trial Court No. 2005-CVG-001197-C1
Honorable Alvino "Ben" Morales, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: May 14, 2008

 

AFFIRMED

This appeal arises from a divorce proceeding between Irene M. Vela and Salvador Vela, Jr., the parents of two minor children. Irene complains the trial court abused its discretion in awarding custody of the children and dividing the marital estate. Finding no abuse of discretion, we affirm the judgment of the trial court in this memorandum opinion.

At the hearing on the custody of the children, the trial court heard testimony from several witnesses, including three of the children's teachers, a diagnostician who prepared a social study, a neighbor, and Salvador himself. After hearing all the evidence, the trial court entered a modified possession order naming Salvador primary joint managing conservator during the academic school year, and Irene as primary joint managing conservator during the summer. The trial court later entered an order dividing the marital estate as recommended by the attorney ad litem. Irene advances three issues on appeal.

1. Irene first argues that the trial court admitted evidence of her sexual practices over her objection, and then used that evidence to determine conservatorship of the children. (1)

Salvador testified that his fifteen-year marriage ended when he discovered photographs of nude men on the family computer, as well as evidence of online conversations Irene had with men. He also found a sexually suggestive video that Irene made of herself for another man. Salvador testified that the children had access to this computer, and used it to play games, take pictures, and do their homework. He also testified that his oldest son is a "computer whiz." Salvador admitted that he and his wife owned two pornographic DVDs that they watched while they were married and kept hidden in their bathroom; the children had access to the bathroom.

We review a trial court's admission or exclusion of evidence for an abuse of discretion. See In re J.W., 113 S.W.3d 605, 612 (Tex. App.--Dallas 2003, pet. denied). An abuse of discretion occurs when the trial court acts without regard to any guiding rules or principles. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). The erroneous admission of evidence is not harmful unless it was calculated to cause and probably did cause the rendition of an improper judgment. Id. at 753. In a suit affecting the parent-child relationship, the exclusion of relevant but prejudicial evidence is an extraordinary remedy that must be used sparingly. In re J.W., 113 S.W.3d at 612 (noting that because the best interest of the child is the court's primary consideration in a suit affecting the parent-child relationship, Rule of Evidence 403 is an extraordinary remedy); In re C.J.F., 134 S.W.3d 343, 356 (Tex. App.--Amarillo 2003, pet. denied) (same).

Irene relies on Wolfe v. Wolfe to support her position that the trial court's admission of her sexual practices was more prejudicial than probative. See Wolfe v. Wolfe, 918 S.W.2d 533, 538-39 (Tex. App.--El Paso 1996, writ denied). In that case, the trial court refused to admit evidence of the father's nontraditional sexual practices--including the use of sexual devices and pornographic videos and magazines--for purposes of determining conservatorship because the evidence was inflammatory and there was no testimony that the child had access to the items. Id. at 539. Likewise, Irene contends that because there was no testimony that her children were exposed to her online conversations or videos, evidence that she engaged in such practices was irrelevant and only served to prejudice the trial court.

We find Wolfe distinguishable from the instant situation. Even though there was no testimony that the children actually saw Irene's videos or conversations on the computer, there was evidence that the children had access to the computer and that the older child was very knowledgeable about computers. Moreover, the trial court was tasked with considering the best interests of the children, and was required to consider all the evidence pertaining to their living situation to make a decision regarding custody. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (listing factors courts can consider when determining the best interest of the child, including the parental abilities of the individual seeking custody and the stability of the home). Accordingly, we do not hold that the trial court abused its discretion in admitting evidence of Irene's sexual activities.

Nor can we agree that the admission of Irene's sexual improprieties caused the trial court to award primary custody during the academic year to Salvador. Although the testimony reflected that both Irene and Salvador were good parents, there was sufficient evidence of Salvador's commitment to the children's education on which the trial court could have based its custody decision. A sixth grade math teacher testified that although both parents are involved in their children's education, the father is more involved in homework projects. After she told the father about a project due after the Christmas holidays, the child turned the project in on time and received a very good grade; however, the child received a zero on another project even though she had called the mother to tell her the project was due.

There was further testimony that Salvador showed a greater commitment to the children's education. Juan Hernandez, III, an educational diagnostician, prepared a social study based on his visits with the children and parents. He testified that both parents possessed good parenting attributes and abilities and therefore recommended joint custody; however, he "gave the advantage to Mr. Vela" for four reasons: 1) the father wanted to maintain his children's current placement, including home, school, and community; 2) the father monitored academics daily and the children appeared to have the best chance of obtaining a good education with their father; 3) the children may need a same-sex role model during their development; and 4) the father's personal needs do not appear to place the children in any harm, and the father does not associate with people of questionable integrity. Hernandez testified that the older child expressed to him that his grades go down when he is with his mother and that his father monitors his homework.

Finally, Salvador testified that he requires the children to complete their homework before they are allowed to watch television or play games. Salvador claimed that when the children spent the weekend with their mother, they came back without having completed their homework. He was strict about having the children complete their homework on a daily basis. He believed that Irene let the children do whatever they wanted and was not as concerned about their education. Given this evidence, the trial court could have based its custody award on factors other than Irene's sexual activities.

2. Irene also argues that the trial court erred in disregarding the oldest child's affidavit stating his preference to reside with his mother and the attorney ad litem's recommendation that she be named primary conservator. The attorney ad litem testified that both Salvador and Irene are exceptional parents, but because the children indicated to him their desire to remain with their mother, he recommended that Irene be named joint managing conservator with the right to designate the children's primary residence. The attorney ad litem disagreed with the social study prepared by Hernandez because Hernandez only conducted one formal interview with the children. The trial court interviewed the children in chambers, and the twelve year-old child submitted an affidavit indicating his preference to reside with his mother.

The Family Code permits a child twelve years of age or older to file with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child. See Tex. Fam. Code Ann. 153.008 (Vernon Supp. 2007). The child's preference, however, is not binding on the court, and is just a part of the evidence weighed by the court in determining the ultimate custody issue. See Bennett v. Northcutt, 544 S.W.2d 703, 708 (Tex. Civ. App.--Dallas 1976, no writ). Given that the trial court was required to weigh all the evidence presented, and that the child's preference is not controlling, the trial court's custody award was neither arbitrary nor unreasonable. Furthermore, the trial court did not abuse its discretion in declining to follow the attorney ad litem's recommendation. As the trier of fact, the trial court was required to consider all the evidence, and judge the credibility of the witnesses and the weight to be given to their testimony. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). It is evident that the trial court was not persuaded by the attorney ad litem's recommendation, and weighed other evidence in favor of Salvador when naming him primary conservator during the academic year. See Lide v. Lide, 116 S.W.3d 147, 152 (Tex. App.--El Paso 2003, no pet.) (an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision).

3. Finally, Irene argues that the marital estate was improperly and unfairly divided because it is based on an erroneous custody decision. Prior to the trial court's ruling on conservatorship, Salvador and Irene agreed that the attorney ad litem would determine the division of the marital estate. After the trial court ruled on custody, the attorney ad litem recommended that more property be awarded to Salvador because the children reside with him a greater portion of the time. The trial court adopted the recommendation and divided the marital estate as follows:

 
Homestead: 65% to Salvador, 35% to Irene Ranch: 100% to Salvador RV: 50% to Salvador, 50% to Irene 401K: 80% to Salvador, 20% to Irene Debt ($17,000): 50% to Salvador, 50% to Irene

We have already decided that the trial court did not abuse its discretion regarding the custody order, and therefore cannot agree that the estate division was based on an erroneous custody award. Moreover, the trial court has wide latitude to divide the marital estate in a manner the court deems "just and right." Tex. Fam. Code Ann. 7.001 (Vernon 2006); Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Grayson v. Grayson, 103 S.W.3d 559, 562 (Tex. App.--San Antonio 2003, no pet.). In exercising this discretion, the court is not required to apportion the community property equally. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981); Gardner v. Gardner, 229 S.W.3d 747, 756 (Tex. App.--San Antonio 2007, no pet.). Accordingly, the trial court did not abuse its discretion in entering the property division.

The judgment of the trial court is affirmed.

Phylis J. Speedlin, Justice

 

1. Before Salvador testified, Irene objected to any testimony that may come in regarding "any alleged adulterous affair that may have happened or pornography that he claims to have seen" as irrelevant to the question of conservatorship. The trial court overruled Irene's objection and permitted Salvador to testify regarding his "personal knowledge, but no speculation at all."