AFFIRMED and Opinion Filed April 25, 2022 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00695-CV 

IN THE INTEREST OF J.N., L.N., K.N., and M.N., CHILDREN 

On Appeal from the 302nd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DF-17-19715 

MEMORANDUM OPINION 

Before Justices Reichek, Nowell, and Carlyle 

Opinion by Justice Reichek 

In this appeal arising out of a divorce proceeding, appellant (“Mother”) 

challenges the trial court’s failure to (1) interview the eldest of the four children of 

the marriage in-chambers and (2) consider evidence that appellee (“Father”) was 

physically abusive. After reviewing the record, and for the reasons set forth below, 

we affirm the trial court’s judgment. 

Background

 Mother and Father married in 2003 and had four children. The couple 

separated in April 2017, and on October 3, 2017, Father filed for divorce. Following 

a hearing before an associate judge to set temporary orders, Father and Mother were 

appointed joint managing conservators and Father was given the exclusive right to 
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designate the primary residence of the four children. Mother appealed the associate 

judge’s ruling to the trial court and the court confirmed the associate judge’s order. 

 A final bench trial was conducted on May 6, 2019. Mother requested the trial 

court interview the eldest child of the marriage, M.N., in-chambers to determine her 

preference regarding with whom she would live, but the court refused the request. 

Nearly one year later, on April 28, 2020, the trial court signed a final divorce decree 

naming Mother and Father as joint managing conservators of the children and 

granting Father the exclusive right to determine the children’s primary residence. 

Mother then brought this appeal challenging the conservatorship decision. 

Analysis 

I. Section 153.004

 We begin with Mother’s second issue in which she contends the trial court 

erred in failing to consider evidence of physical abuse when deciding the matter of 

conservatorship. The trial court is given wide latitude in determining custody issues. 

Burns v. Burns, 116 S.W.3d 916, 920 (Tex. App.—Dallas 2003, no pet). Where, as 

here, the record contains no findings of fact and conclusions of law, all necessary 

findings of fact to support the trial court’s judgment are implied.1

 Id. In a non-jury 

1

 Although Mother requested findings of fact and conclusions of law, her request was untimely 

and she has waived her ability to complain on appeal about the absence of findings and 

conclusions. Am. Realty Tr., Inc. v. JDN Real Estate – McKinney, L.P., 74 S.W.3d 527, 530 (Tex. 

App.—Dallas 2002, pet. denied). 
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trial, “every reasonable inference and intendment supported by the record will be 

drawn in favor of the trial court’s judgment.” Id. 

 Mother relies on section 153.004 of the Texas Family Code to argue the trial 

court had no discretion to appoint her and Father as joint managing conservators of 

the children because she presented credible evidence of a history or pattern of 

physical abuse committed by Father. Mother further argues that, based on the 

evidence of abuse she presented, the trial court erred in appointing Father as the 

conservator with the exclusive right to determine the children’s primary residence. 

 Section 153.004(b) states, 

 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 

another parent, a spouse, or a child . . . . It is a rebuttable presumption 

that the appointment of a parent . . . 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. 

TEX. FAM. CODE ANN. § 153.004(b). As the sole judge of the weight and credibility 

of the evidence, the finder of fact has broad discretion to determine what constitutes 

credible evidence of a history or pattern of physical abuse. See Alexander v. Rogers, 

247 S.W.3d 757, 764 (Tex. App.—Dallas 2008, no pet.); Coleman v. Coleman, 109 

S.W.3d 108, 111 (Tex. App.—Austin 2003, no pet.). “The trial court is in a better 

position to determine what will be in the best interest of the children since it faced 

the parties and their witnesses, observed their demeanor, and had the opportunity to 
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evaluate the claims made by each parent.” Coleman, 109 S.W.3d at 111. The court’s 

judgment will not be disturbed on appeal unless there has been a clear abuse of 

discretion. Id. 

 Mother points to testimony she gave at trial about three alleged episodes of 

abuse to support her argument that she presented credible evidence of a history or 

pattern of physical abuse by Father. Mother first testified that Father became irate 

after she “messed up” a home improvement project and he threw a small bookcase 

at her. She stated Father then slammed the bookcase at her bare feet. When asked 

if she was injured, Mother replied she was not. Mother was then asked if Father’s 

actions scared her, and she replied, “It broke my heart.” 

 Mother next testified that friends witnessed Father yelling at her and 

“confining [her] to an area.” Mother stated that “these sorts of things started 

happening almost constantly.” 

 Finally, Mother testified that, as she was moving out of the house with the 

children, Father came out to the car carrying her gun and “offered” it to her. Mother 

conceded that Father did not threaten her with the gun and stated only, “Don’t you 

want to take your gun with you?” When asked if that statement was scary to her, 

she responded, “It was the scariest moment of my life.” 

 Mother argues that, because Father did not deny these incidents at trial, the 

court was required to find she had presented credible evidence of abuse. Although 

Father did not testify about the episodes alleged by Mother, the record shows Father 
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was not asked about them. Prior to Father testifying, Mother had made no 

allegations in her pleadings of family violence or physical abuse and Father was 

called as a witness before Mother testified. But while Father did not directly 

contradict Mother’s testimony at trial, he presented other evidence concerning 

Mother’s accusations and her credibility. 

 Father called Christopher Bouchard, a Dallas County family court counselor, 

as a witness at trial. Pursuant to a court order, Bouchard prepared a child custody 

evaluation in the case. The report prepared by Bouchard discussed the bookcase 

incident and stated that Father denied he slammed or threw a bookcase at Mother. 

Instead, Father stated he accidently set a bookshelf down on Mother’s feet while 

they were moving furniture. Father said Mother then began hitting him and, when 

he grabbed her wrists to try to restrain her, she bit him and ran out of the house. 

Bouchard testified he spoke with the children and reviewed various 

documents related to the family, including mental health records for both Mother 

and Father. Bouchard stated he was concerned after his interviews with the children 

that Mother was using allegations of abuse to influence how the children felt about 

Father. One of the children indicated Mother had given him suggestions of things 

to say in his interview with Bouchard. 

 With respect to the mental health records, Bouchard testified he reviewed a 

report from Dr. Tim Young, a marital therapist that worked with both Mother and 

Father for over two years. Dr. Young stated Mother consistently reported Father 
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was “unstable, unsafe, and angry.” But Young “[did] not share the mother’s 

assessment and could not find any other person who corroborated the mother’s 

assessment but instead found the mother to have pronounced problematic behavior.” 

Bouchard recommended that Mother and Father remain as joint managing 

conservators with Father retaining the exclusive right to determine the children’s 

primary residence. 

 Father also called Mother’s mother, S.M., to testify at trial. S.M. stated she 

had no concerns about Father caring for the children. She acknowledged that Mother 

had made allegations of abuse but said the allegations did not begin until Mother and 

Father separated. According to S.M., Mother had a problem with prescription 

medications and needed “rehab.” 

 There is nothing in the record to show the trial court did not consider Mother’s 

testimony about Father’s alleged actions. See Burns, 116 S.W.3d at 921 (implicit in 

trial court’s judgment is finding there was no credible evidence of history or pattern 

of abuse). But Mother’s testimony had to be weighed against the other evidence 

presented. As courts have noted, family violence allegations are frequently utilized 

as leverage in contested custody disputes, and what constitutes abuse remains subject 

to varying interpretations. See Gonzalez v. Gonzalez, No. 08-01-00453-CV, 2004 

WL 1178898, at *6 (Tex. App.—El Paso, May 27, 2004, no pet.) (mem. op.) 

(McClure, J., concurring). It was within the trial court’s discretion to determine that 

Mother’s testimony, even if true, did not present credible evidence of a history or 
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pattern of physical abuse. See id. at *4 (trial court may determine that 

uncontroverted testimony does not present credible evidence of history or pattern of 

abuse); see also Lowth v. Lowth, No. 14-03-00061-CV, 2003 WL 22996939, at *6 

(Tex. App.—Houston [14th Dist.] Dec. 23, 2003, pet. denied) (mem. op.) (trial court 

could reasonably conclude uncontroverted evidence of one “looming” incident, two 

pushing incidents, and one incident of father threatening mother did not rise to level 

of history or pattern of abuse); Jackson v. Jackson, No. 05-01-01719-CV, 2002 WL 

31513388, at *1 (Tex. App.—Dallas Nov. 13, 2002, no pet.) (mem. op., not 

designated for publication) (trial court had discretion to determine uncontroverted 

evidence father “pushed or shoved” mother several times was not credible evidence 

of history or pattern of abuse). Evidence of “altercations and confrontations” will 

not automatically prevent the trial court from appointing parents as joint managing 

conservators. See In re T.G., No. 05-12-00460-CV, 2013 WL 3154975, at *8 (Tex. 

App.—Dallas June 19, 2013, no pet.) (mem. op.). 

 In addition to her trial testimony, Mother relies on an affidavit she filed in 

support of an ex parte application for a protective order filed several months after 

trial concluded, but before the trial court rendered judgment.2

 In the affidavit, 

Mother alleged various acts of family violence committed by Father including his 

2

 In her reply brief, Mother also makes a general reference to “evidence in multiple hearings 

prior to the final trial” without citing any evidence in the record. Evidence from prior hearings for 

temporary orders that is not reintroduced at trial may not be considered by the trial court in 

rendering its final orders, nor by this Court in reviewing the trial court’s final order. In re M.D.B., 

344 S.W.3d 1, 3 (Tex. App.—Texarkana 2011, no pet.).
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use of guns in the presence of the children. The same day, Father filed a petition for 

writ of habeas corpus asserting Mother was refusing to turn over possession of the 

children as required by the temporary orders. 

The record shows Mother’s application and Father’s petition were heard by 

an associate judge. Following the hearing, the associate judge ordered Father to turn 

over all his firearms to his attorney, but denied Mother’s request for a protective 

order. Mother was ordered to turn over the children to Father by 6 p.m. that evening. 

No reporter’s record from the hearing before the associate judge was filed in this 

Court. 

Mother then appealed the denial of her application for a protective order to 

the trial court. At the de novo hearing on the appeal, Mother’s counsel focused 

mainly on Mother’s request that the court interview M.N. in-chambers; no evidence 

was presented. The trial court confirmed the associate judge’s order and denied 

Mother’s request for a protective order. 

Based on the record before us, we cannot conclude the trial court erred in 

determining there was no credible evidence of a history or pattern of abuse and in 

appointing Mother and Father as joint managing conservators with Father having the 

exclusive right to determine the children’s primary residence. We resolve Mother’s 

second issue against her. 

 
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II. Section 153.009(a)

 In her first issue, Mother contends the trial court erred in failing to conduct an 

in-chambers interview with M.N., who was thirteen years old at the time of trial. 

Section 153.009(a) of the Texas Family Code states, “In a nonjury trial or at a 

hearing, on the application of a party, the amicus attorney, or the attorney ad litem 

for the child, the court shall interview in chambers a child 12 years of age or older 

. . . to determine the child’s wishes as to conservatorship or as to the person who 

shall have the exclusive right to determine the child’s primary residence.” TEX. FAM.

CODE ANN. § 153.009(a). The local rules for the 302nd Judicial District Court, 

where this case was tried, state the “Judge will conduct [an] interview if required, 

but only after completion of all other testimony, and only after scheduling the 

interview in advance . . . .” 

 In this case, Father filed a motion more than a year before trial requesting the 

judge confer with the children. Approximately two months after the motion was 

filed, Mother filed a jury demand, making Father’s section 153.009 request 

inapplicable. Shortly before trial was scheduled to occur, however, Mother 

withdrew her request for a jury and immediately began attempting to schedule an inchambers interview for M.N. 

 On May 1, 2019, Mother’s counsel sent a letter to the trial court’s court 

coordinator stating, 
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 Please accept this letter as my formal written request to schedule 

[M.N.], a child subject to this suit over the age of 12, to confer with the 

Judge in chambers in accordance with the posted 302nd Policies and 

Procedures. 

 A motion for the children to confer with the Judge was filed on 

or about December 6, 2017. This case was previously set for a jury trial 

however the parties waived the jury setting at the pretrial conference. 

This request is made in accordance with Sec. 153.009(a) of the Texas 

Family Code. 

 This matter is set for final hearing on Monday, May 6, 2019 at 

9:00 a.m. Per the court’s rules it appears that the Judge’s interview with 

the child shall take place following the completion of all other 

testimony and it is required that the interview be scheduled. Please let 

me know what time we will need to have the child available for 

conference with the Judge. 

 At trial five days later, counsel for Mother again requested the court interview 

M.N. in chambers. Counsel explained, and Mother later testified, that Mother had 

withdrawn her jury demand solely to trigger the requirement that the trial court 

interview M.N. The court refused to conduct the interview stating that Mother had 

failed to file a written motion and she could not urge the motion filed by Father. 

 On June 3, 2019, Mother filed a “Brief in support of Texas Family Code 

§153.009: Interview with a Child in Chambers.” In her brief, Mother explained that, 

in accordance with the trial court’s written policies, she had attempted to schedule 

an interview with M.N. to be conducted after completion of the testimony. These 

attempts included approximately twenty phone calls and an email to the court 

coordinator. Mother believed it was in her daughter’s best interest to “have a voice 

in where she lives.” 
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Several weeks later, Mother filed a “Motion for Judge to Confer with Children 

and Joinder of Petitioner’s Motion to Confer.” The motion stated it was a written 

request intended as “an enforcement of the verbal request” made by Mother’s 

counsel during trial. The trial court signed the final divorce decree one year later 

without having conducted an interview with M.N. 

The stated basis for the trial court’s denial of Mother’s request for an inchambers interview was that she had not filed her own motion prior to trial. 

However, section 153.009(a) does not require a formal motion. Nor does it 

distinguish between an oral or written application.3

 See In re C.B., No. 13-11-00472-

CV, 2012 WL 3139866, at *6 (Tex. App.—Corpus Christi—Edinburg Aug. 2, 2012, 

no pet.) (mem. op.) (oral request at close of evidence sufficient application); see also

Bynum v. Shatto, 514 S.W.2d 808, 811 (Tex. App.—Corpus Christi 1974, writ ref’d 

n.r.e.) (oral motion sufficient where rule does not require it be in writing). In this 

case, Mother made numerous attempts before trial to schedule an interview for M.N. 

3

 Father relies on In re S.L.L., No. 09-09-00429-CV, 2011 WL 1224983, at *5 (Tex. App.—

Beaumont Mar. 31, 2011, pet. denied) (mem. op.), which suggests the trial court has discretion to 

deny a request for an in-camera interview of a child twelve years of age or older where the 

application is made verbally. In reaching this conclusion, the court relied on Hamilton v. Hamilton, 

592 S.W.2d 87, 88 (Tex. App.—Fort Worth 1979, no writ). In Hamilton, however, there was no 

record of an oral motion to interview the children other than vague and conflicting testimony at a 

hearing on the mother’s motion for new trial. Id. The court held that, although section 153.009(a) 

imposes a mandatory duty on the trial court to conduct an interview, the mother failed to show 

error because the record was “devoid of anything that could be construed as an application.” Id. 

We do not read Hamilton as standing for the proposition that the trial court has discretion to deny 

a clear application to conduct a mandatory in-camera interview with a child simply because the 

application is verbal. To the extent In re S.L.L. suggests otherwise, we disagree. See In re C.B., 

2012 WL 3139866, at *6. 
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Even assuming her written request to the court coordinator was insufficient by itself 

to constitute an application, Mother’s counsel made a clear verbal application for an 

interview at the beginning of trial and filed written applications before the trial court 

rendered judgment. We conclude this was sufficient to trigger the trial court’s 

mandatory duty to interview M.N. See In re C.B., 2012 WL 3139866, at *6. 

Despite the fact that section 153.009(a) imposes a mandatory duty, the trial 

court’s failure to conduct the required interview is subject to a harm analysis. See

TEX. R. APP. P. 44.1; In re C.B., 2012 WL 3139866, at *6; see also In re D.I.B., 988 

S.W.2d 753, 757–59 (Tex. 1999) (harm analysis should be performed even when 

statute is mandatory). The sole matter made the subject of the mandatory interview 

is the child’s wishes as to conservatorship and primary residence. See TEX. FAM.

CODE ANN. § 153.009(a). Subsection (c) of section 153.009 provides that 

“interviewing a child does not diminish the discretion of the trial court in 

determining the best interests of the child.” Id. § 153.009(c). Accordingly, even if 

M.N. had expressed a preference to live with Mother, as Mother suggests she would 

have done, the trial court would not have been obligated to make a different 

conservatorship decision. 

In this case, M.N. is one of four children of the marriage. “There is a long 

line of jurisprudence in Texas supporting a preference that two or more children of 

a marriage should not be divided absent clear and compelling reasons.” Coleman, 

109 S.W.3d at 112. This preference was codified by the legislature in section 
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153.251(c) of the Texas Family Code. TEX. FAM. CODE ANN. § 153.251(c) (“It is 

preferable for all children to be together during periods of possession.”). 

The court-appointed counselor who prepared the child custody evaluation 

opined it was in the best interest of all the children that Father be granted the 

exclusive right to determine their primary residence. This opinion was based in part 

on his interviews with the children and a review of records from Mother and Father’s 

marital therapist, Dr. Young. Dr. Young counselled Mother and Father for two 

years, and it was his impression that Father’s parenting skills were “quite good, 

despite reports by his wife to the contrary.” In comparison, Dr. Young stated he 

found Mother’s parenting skills were “compromised by her own instability and 

agitation.” This evidence strongly supports the trial court’s decision to have the 

children primarily reside with Father. 

Mother again relies on her affidavit in support of her request for an ex parte 

protective order to urge the importance of the in-camera interview. As discussed 

above, both the associate judge and the trial judge determined Mother’s application 

was without merit and denied her request for a protective order. 

The purpose of the mandatory in-camera interview is to allow an older child 

to express a preference regarding with whom they will live. In this case, even if 

M.N. expressed a desire to live with Mother, we cannot say that alone would present 

a clear and compelling reason to separate her from her siblings. See Coleman, 109 
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S.W.3d at 112. Accordingly, we conclude the trial court’s failure to conduct the incamera interview in this case was harmless. 

Based on the foregoing, we affirm the trial court’s judgment. 

 

 

Carlyle, J., concurring in part and dissenting in part. 

200695F.P05 

 

/Amanda L. Reichek/

AMANDA L. REICHEK 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

IN THE INTEREST OF J.N., L.N., 

K.N., AND M.N., CHILDREN 

No. 05-20-00695-CV 

 On Appeal from the 302nd Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DF-17-19715. 

Opinion delivered by Justice 

Reichek. Justices Nowell and Carlyle 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED. 

 It is ORDERED that appellee JOHN H. NEWTON recover his costs of this 

appeal from appellant MICHELLE A. NEWTON. 

Judgment entered April 25, 2022