Opinion filed May 14, 2009

In The

Eleventh Court of Appeals

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No. 11-07-00255-CV 

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IN THE INTEREST OF B.R.P., A CHILD

On Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 37992-C

M E M O R A N D U M O P I N I O N

This is an appeal from the trial court’s order on the conservatorship of B.R.P. The trial court

entered its final decree of divorce for Tracey Jean Perkins and Ronald Edward Perkins on May 14,

2007. The trial court appointed Tracey and Ronald joint managing conservators of B.R.P. and

awarded Ronald the right to designate the child’s primary residence. We affirm. 

In her sole issue on appeal, Tracey argues that the trial court abused its discretion in

appointing Ronald as a joint managing conservator. The trial court’s determination of

conservatorship is reviewed for abuse of discretion. Naguib v. Naguib, 137 S.W.3d 367, 370 (Tex.

App.—Dallas 2004, pet. denied). A court abuses its discretion when it acts without reference to any

guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). A trial court’s determination of the best interest of the child will only be reversed upon a
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determination of an abuse of discretion because the trial court is in the best situation to observe the

demeanor and personalities of the witnesses. Naguib, 137 S.W.3d at 371.

The Texas Family Code establishes a rebuttable presumption that the appointment of the

parents of a child as joint managing conservators is in the best interest of the child. TEX. FAM.CODE

ANN. § 153.131(b) (Vernon 2008). However, TEX. FAM. CODE ANN. § 153.004 (Vernon 2008)

provides:

(a) In determining whether to appoint a party as a sole or joint managing

conservator, the court shall consider evidence of the intentional use of abusive

physical force by a party against the party’s spouse, a parent of the child, or any

person younger than 18 years of age committed within a two-year period preceding

the filing of the suit or during the pendency of the suit. 

(b) The court may not appoint joint managing conservators if credible

evidence is presented of a history or pattern of past or present child neglect, or

physical or sexual abuse by one parent directed against the other parent, a spouse, or

a child.... It is a rebuttable presumption that the appointment of a parent as the sole

managing conservator of a child or as the conservator who has the exclusive right to

determine the primary residence of a child is not in the best interest of the child if

credible evidence is presented of a history or pattern of past or present child neglect,

or physical or sexual abuse by that parent directed against the other parent, a spouse,

or a child.

 Tracey argues that there was credible evidence of Ronald’s acts of family violence within the two

years preceding the filing of the suit.

Ronald and Tracey were married in October 1992. Tracey had two sons, Steven and Chris,

from previous relationships. B.R.P. was born June 3, 1997. Tracey testified that Ronald can be

physically and verbally abusive. She testified that, on one occasion, he knocked her son, Steven,

to the ground. However, Steven was twenty years old at the time. Tracey further testified that

Ronald “backhanded” Chris for not picking up his clothes. Tracey stated that Ronald jerked B.R.P.

by her arm when B.R.P. would not pick up her toys. She also stated that Ronald had B.R.P. stand

in the corner for punishment and that B.R.P. started crying. Ronald took off his belt and hit the filing

cabinet with the belt, telling B.R.P. that he would “give [her] a reason to cry.” 

Chris testified that he had lived with Ronald for thirteen or fourteen years. Chris stated that

Ronald had been physically aggressive with him at times and had backhanded him and cussed at him.
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Chris said that Ronald did not use profane language with B.R.P. Chris acknowledged that Ronald

did not “pick on him” without reason but disciplined him as a father. 

Ronald testified and acknowledged physical discipline of the children. Ronald stated that

both he and Tracey spanked the children with a wooden paddle. Ronald admitted losing his temper

with Chris and slapping Chris in the face. Ronald further admitted spanking Steven with a spark

plug wire and backhanding Steven. 

Steven testified at trial that Tracey usually worked nights and that Ronald took care of him,

his brother, and B.R.P. Steven stated that B.R.P. should live with Ronald in the Abilene area.

Danielle Star had known Ronald and Tracey for twelve years. Danielle testified that Ronald was a

good father to all three children. Danielle further testified that the children were well-behaved and

treated Ronald with respect. Danielle stated that it would be best for B.R.P. to live with Ronald.

Julie Brisco, Tracey’s friend, also testified that it would be best for B.R.P. to live with Ronald. 

If credible evidence is presented of a history or pattern of past or present physical abuse by

one parent directed against the other parent or a child, the trial court may not appoint joint managing

conservators. Section 153.004(b). Family violence is an act that is intended to result in physical

harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the family

member in fear of imminent physical harm, bodily injury, assault, or sexual assault but does not

include defensive measures to protect oneself. TEX. FAM. CODE ANN. § 71.004(1) (Vernon 2008).

Family violence is also abuse by a member of a family toward a child of the family. TEX.FAM.CODE

ANN. § 71.004(2) (Vernon 2008). Abuse is defined as mental or emotional injury to a child that

results in observable and material impairment in the child’s growth, development, or psychological

functioning or physical injury that results in substantial harm to the child, excluding reasonable

discipline by a parent that does not expose the child to a substantial risk of harm. TEX. FAM. CODE

ANN.§ 261.001(1)(A), (C) (Vernon 2008); Stucki v. Stucki, 222 S.W.3d 116, 123 (Tex. App.—Tyler

2006, no pet.). 

Ronald acknowledged spanking Steven with a spark plug wire; however, the record does not

indicate that that incident occurred within two years from the filing of the suit. Moreover, Steven

did not testify that Ronald abused him or any of the children. See Stucki, 222 S.W.3d at 124. Ronald

further acknowledged losing his temper with Chris and slapping Chris in the face. There was
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testimony that Chris had a red mark on his face for two days, but Ronald does not recall leaving a

mark on Chris. There was conflicting evidence on whether Chris suffered a physical injury, and the

evidence does not show that the slap resulted in substantial harm to Chris. Id. The record shows that

Tracey left Chris with Ronald when she moved to Las Vegas, Nevada, indicating that she did not fear

for his safety while living with Ronald. See Hinkle v. Hinkle, 223 S.W.3d 773, 782 (Tex.

App.—Dallas 2007, no pet.). 

There is no evidence that Ronald abused B.R.P. or that B.R.P. suffered any physical injury

resulting in substantial harm. Stucki, 222 S.W.3d at 124. Again, Tracey left B.R.P. in Ronald’s care

when she worked in Fort Worth, and she allowed B.R.P. to live with Ronald while she moved to Las

Vegas. See Hinkle, 223 S.W.3d at 782. The record shows that Ronald used physical force in

disciplining the children, but the record does not support a finding of a history or pattern of physical

abuse. The record shows that Ronald hit Tracey on one occasion; however, that was prior to their

marriage and does not support a finding of a history or pattern of abuse under the statute. There was

no protective order rendered against Ronald during the marriage or during the pendency of the suit.

See Stucki, 222 S.W.3d at 123. We cannot conclude from the record before us that the trial court

abused its discretion in appointing Ronald as joint managing conservator with the right to establish

the primary residence of B.R.P. Tracey’s sole issue on appeal is overruled. 

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

May 14, 2009

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.