1 The final decree of divorce granted Jackie’s reques t for her name to be changed to Jackie Stulken and many documents contained i n the record are so styled. For the sake of clarity, however, we will refer to her as Jackie. NO. 07-03-0289-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A JANUARY 30, 2004

______________________________ IN THE MA

TTER OF T HE MARRI AGE OF JACKIE L . STEIN A ND CRAIG H. STEIN AND IN THE INTEREST OF BROOKE L. STEIN AND TYLER W. STE IN, MINOR CHILDREN

_________________________________ FROM THE 31 ST DISTRICT COURT OF LIPSCOMB COUNTY; NO. 02-11 -3757; HO NORABLE STEVEN EMMERT, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
OPINION Following a non-jur

y tr ia l, Jackie L. Stein 1 challenges those portions of the final decree of divorce (1) naming Craig H. Stein and her as joint managing conservators of their2

children; (2) desi gnating Craig asthe prima ryjoint man aging co nservator with the exclusive rightto e s tablish the primary residence of the children; and (3) ordering her to pay child support. Jackie contendsby her fi rst issuethat the trial cou rt erred b y findin g there was no credible evidence presenting a history or pattern of past or present physical abuse by Craig againsther. By her second issue, Jackie maintains the trial court abused its d iscretion in appointing the parties as joint managing conservators in the face of such credible evidence. For the fo llowing reasons, we rever se and re mand in p art and a ffirm in p art.
Jackie and Craig began dat i ng in 19 97. Shor tly befor e the bir th of thei r daughte r, the couple began li ving tog ether. Ja ckie and Craig’s son was born in F ebruary of 2 0 01, and they were married the following fall. In February of 2002, the Lips comb Cou nty Court , finding that Craig had committed family violence, entered a protective order against him for the benefit of Jackie and the children. Jackie filed for divorce on November 13, 200 2. The following day, after Craig pleaded no contes t, the Lip scomb Cou ntyCourt fou nd him gu ilty of viola ting the protectiv e order.
In her original petition for divorce, Jackie p resented a “Protec tive Orde r Statemen t” and attached as an exhibit to the petition acopy of the pro te ctive order. At the trial in February of 2003, Jackie offered, and the court admitted, into evidence a certified copy of the judgment and sentence reflecting Craig’s conviction for viol ation of the prote ctive ord er. In addition, through their trial testimony, Jackie and Craig acknowledged they committed familyviolence against each other during the cours e of thei r tumultuo us relati onship. Most2 Jackie and Craig agr ee that none of the family violence was di rected at their

children. 3 significant, Craig conceded that on one o c casion he dragged Jackie across the room by her ha ir. Corre spondin gly, Jack ie admitted the ha ir-draggi ng incid ent occur red after sh e hitCraig w ith a hammer in an effort “to get h is attent ion.” Th us, altho ugh noneof the ac ts of violence resulte d in any injuries requirin g medica l treatm e nt, the re cord pres ents undi sputed e vidence of past physical abuse by one p arent against the other. That evidence notwithstanding, at the conclusion of the trial , the court announced:
The Court makes the finding that there’s not a history or pattern of past or presentchild neglect

or physical or sexual abuse by one parent . . . directed againstthe othe r parent, spouse o r a child

. And the Court fin ds that to be in the best i nterest of

the chil dren. . . . 2 Following that ann ouncement, the trial court declared Craig and Jackie to b e joint managing
conserva tors of the ir child ren. Upon J ackie’s request, t he trial court ente red, as pe rtinent to this app eal, t h e following findings of fact and conclusions of law:
* * * 5. Itis in th e best in terest of t he child ren that [Jackie] a nd [C ra ig] be appointed Joint Managing Conservators of the children.
6. There is no credible evidence presenting a history or pattern of child neglect, sexual abuse or physical abuse byone p arent directed against the other parent, a spouse or a child.4

7. [Cr ai g] is a person fit to be appointed a parent joint managing conservator

with the exclusive right to establish the primary residence of the children without regard to geographic location.
8. [Jackie] i s a person fit to be appointed a parent joint managi ng conserva tor.
* * *
11. Thata protective order was entered against [Craig] for the protection of [Jackie]. Three days after the protect ive order was entered, the parties again lived together for a period of more than five months.
12. Any fi nding of fact that is a c onclusion of law shall be deemed a conclusion of law.
In June of 2003, Ja ckie fil ed her no tice of a ppeal to this Cou rt. By her first issue, Jackie contends the trial court erred when it found there was no credible evidence presenting a history or pattern of past or present physical abuse by Craig againsther. Jackie argues, in other words, the critical issue is “whether credi ble evidence presenting a history or pattern of past or present physical abuse by [Craig ] against [Jackie]
was presented at trial. ” With he r second issue, Ja ckie mai ntains th e trial court abused i ts discretion by appointing the parties joint managing conservator s when s uch credible evidence was presented. Because the two issues advance questions of law, and because3 We recognize the most recent edition of the statute is located in a cumula tive pocketpart; however, because that version is different from the one under w hich the parties operated at trial, we will refer, in stead, to the boun d volume

. Cf. Tex. Fam. Code Ann. § 153.004 (Vernon 2 002) withTex. Fa m. Code. A nn. § 153 .004 (Vernon Supp . 2004). 5 our disposition of the first

issue controls our disposition of the second, we will discuss the issues contemporaneously.
Trial Court Discretion
W ell establi shed Texas law affords the trial court with wi de latitude in determining the best interest of minor children, and the decision of the trial court will be reversed only when it appea rs from therecord as a wholethat the court hasabused i ts discre ti on . Gillespie v. Gillespie, 644 S.W.2 d 449, 45 1 (Tex. 1 982). That discretion, however, is now subjectto the provisions of section 153.004 of the Fami ly Code, which a pplies w hen there is a history of domestic violence within the family. (Vernon 2002). 3 Specifically, the Family Code pro vides, i n pertine nt part: (a) In determin ing whet her to ap point a party as a sole or joint managing conserva tor, the court shall consider evidence of the in tent ional use of abusive p hysic al force by a party against the party ’s spous e . . . committed within a two-year period preceding the filing of the suit or during th e penden cy of the suit. (b) The court may not appoint joint managing conservators if credible ev idence is presented of a history or pattern of past or present ch il d neglect, or physical or sexual abuse by o ne parent dir ected a gainst the other parent, aspouse, or a chil d . . . .6

Tex. Fam . Code An n. § 153. 004 (a) & (b) (Vern on 2002)

. Findings of Fact and Conclusions of Law Next, we notice the trial court’s designation of a finding of fact or conclusion of law is not contr

olling on appea l. See Ray v. Farmers State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 19 79). The tria l court’s finding number six that “there is no credi ble evidence presenting a histor

yor pattern of child neglect, sexual abuse or physical abuse” i s similar to a finding that Jackie “failed to prove” certain ele ments. Cf . Williford v. Submergible Cable, 8 95 S.W.2 379, 383 (Tex.App.–Amarillo 1994, no w rit) (such a negative ans we r means the party

with theburden of p roof h as failed to carry the burden). Because the evidence of physi cal abus e was un disputed , we conc lude fin ding num ber s ixconstitutes
a conclusion by the trial court that, as a matter of law, Jackie failed to proveher claim that physical abuse ha d occurre d. Cf . Sandoval v. Hartford Cas. Ins. Co., 653 S.W.2d 604, 607 (Tex.App.–Amarillo 1983, no writ) (where the testim ony of a witness, even an interested one, is clear, direct, positive, and unco n tradicted by any other witness or attendant circumstances, it is taken as true as a matter of law). We wi ll, therefor e, review the trial court’s conclusion of law de no vo. In re Hump hreys, 88 0 S.W.2d 4 02, 403 ( Tex. 199 4), cert. denied, 513 U.S. 964, 115 S. Ct. 427, 130 L. Ed. 2d 340 (1994). That conclusion wi ll be set aside if it is erroneous as a matter of law. Benedi ctine Sisters of the Goo d Shepar d v. Ellis on, 956 S .W.2d 629 , 631 (Te x.App.–S an Anton io 1997, pet. den ied).4 Our holding related to the history of physical ab use presented under the facts of this case precludes a determination of whether, under a different set of circumstances, a single act of vio lence co uld cons titute a p attern un der the te rms of the statute. 7 Analys is
The Legislature did not define the terms history or pattern when it enacted section 153.004 of the Fa mily Cod e. However, where , as here, the statu te i s clear and unambiguous, the rules of statutory construction are inappropriate, and the statute should be given i ts plain meaning . Cail v . ServiceMotors Inc ., 660 S.W .2d 814, 815 (Tex . 1983). In common usage, the term history is defined as “events that form the subject m atter of a history” or “event

s of the p ast.” Merri am-Webste r’ s Collegiate Dictionary 549 (10 th Ed. 2002). From thatdefinition we deduce that, although a single act of violence or abuse may notconstitute a pattern, it can amount to a history of physical abuse. 4 Cf

. Tex. Fa m. Code Ann. §153.004 (b) (Vernon 2002) (providing “a history of sexual abuse includes a sexual assaultthat resu lts in th e other p arent becoming pre gnant wi th the chi ld”) ( em phasis added). Considering the record before us, we conclude that, because the acts of physical abuse were either conceded by the parties or revealed by other uncontradicted testimony attrial, as a matter of law credible evidence waspresented of a history of physical abuse byone pare nt again st the oth er p ar ent. Cf . Texas & N.O.R. Co. v. Burden, 203 S.W.2d 522, 530 (Tex. 1947) (where there is evidence upon an issue, and ther e is no e vidence to the contrary, the fact finder does not have the right to disregard the undisputed evidence and decide the issue in accordance with his wishes). The trial court’s conclusion of law to5 In reaching this conclusion, we have not o verlooked Craig’s reliance upon Burns

v. Burns, 116 S.W.3d 916 (Tex.App.–Dallas 2003, no pet.). However, wedeem that case to be factually distinguishable from the one at ha nd. In Burns , the evidence of physical violence was conflicting, and the protective order at issue in the case seemingly was never brought to the atte ntion of the trial court. 8 the contrary is errone ous as a matter of la w. Benedic t

ine Sist ers , 956 S.W.2d at 631. 5 Therefore, becausethe Fami ly Code prohibit s the app ointment o f joi nt managing
conserva tors where a hist ory of phys ical abu se is pre sented, th e trial court abus ed its discretion in so de signatin g Jackieand Crai g. Jacki e’s first and seco nd issue s are sustained. Accordingly, we reverse that portion of the t rial cou rt’s judgm ent relat ing to conservatorship, possessi on, and c hild sup port, and remand those issues to the trial co urt for further proceedings. In all other aspects, the judgment of the trial court is affirmed.

Don H. Reavis Justice