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 di vorce proceeding, appellant (“Mother”) challenges the trial cour t’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 r ecord, and for the reasons set forth below, we affirm the tria l 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 file d 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–2– designate the primary residenc e of the four children. Mo ther appealed the associate judge’s ruling to the trial court and the c ourt confirmed the associate judge’s order. A final bench trial was conducted on May 6, 2019. Mo ther requested the trial court interview the eldest ch ild 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 mana ging conservators of the children and granting Father the exclusive right to dete rmine the children’s primary residence. Mother then brought this appeal cha llenging 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 wi de latitude in determin ing custody issues.
Burns v. Burns , 116 S.W.3d 916, 920 (Tex. App.—D allas 2003, no pet). Where, as here, the record contains no findings of f act 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 a nd 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).–3– trial, “every reasonable inference and in tendment 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 appoi nt her and Father as join t managing conservators of the children because she presented credible evidence of a history or pattern of physical abuse committed by Father. Moth er further argues that, based on the evidence of abuse she presente d, the trial court erred in appointing Father as the conservator with the exclusive right to de termine the children’s primary residence. Section 153.004(b) states, The court may not appoint jo int managing conservators if credible evidence is presented of a hi story 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 prim ary residence of a child is not in the best interest of the child if credib le 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 othe r parent, a spouse, or a child. T EX

. F AM

. C ODE A NN

. § 153.004(b). As the sole judge of the weight and credibility of the evidence, the finder of fact has br oad 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. A pp.—Dallas 2008, no pet.); Coleman v. Coleman , 109 S.W.3d 108, 111 (Tex. App.—Austin 2003, no pet.). “The tr ial 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 witne sses, observed their demeanor , and had the opportunity to–4– 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 pres ented credible evidence of a history or pattern of physical abuse by Father. Mother first testified that Father became irate after she “messed up” a hom e 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 re plied, “It broke my heart.” Mother next testified that friends witnessed Father yelling at her and “confining [her] to an area.” Mother stat ed that “these sorts of things started happening almost constantly.” Finally, Mother testified that, as sh e was moving out of the house with the children, Father came out to the car carrying her gun and “offe red” it to her. Mother conceded that Father did not threaten he r with the gun and stated only, “Don’t you want to take your gun with you?” When as ked if that statement was scary to her, she responded, “It was the scar iest moment of my life.” Mother argues that, because Father did not deny these incidents at trial, the court was required to find she had presente d credible evidence of abuse. Although Father did not testify about the episodes al leged by Mother, the record shows Father–5– was not asked about them. Prior to Fa ther testifying, Mother had made no allegations in her pleadings of family vi olence or physical abuse and Father was called as a witness before Mo ther 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 cour t 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 se t 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 ra n 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 abus e to influence how the children felt about Father. One of the children indicated Mother had given him suggestions of things to say in his interv iew with Bouchard. With respect to the mental health reco rds, Bouchard testif ied he reviewed a report from Dr. Tim Young, a ma rital therapist that worked with both Mother and Father for over two years. Dr. Young stated Mother c onsistently reported Father–6– was “unstable, unsafe, and angry.” But Young “[did] not share the mother’s assessment and could not fi nd any other person who corroborated the mother’s assessment but instead found the mother to have pronounced problematic behavior.” Bouchard recommended that Mother an d Father remain as joint managing conservators with Father retaining the ex clusive 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 th e 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 th e trial court’s discretion to determine that Mother’s testimony, even if true, did not pr esent credible evidence of a history or–7– pattern of physical abuse. See id . at *4 (trial court may determine that uncontroverted testimony does not present cred ible 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 ev idence 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 dete rmine uncontroverted evidence father “pushed or shoved” mother several times was not credible evidence of history or pattern of abuse). Eviden ce of “altercations a nd 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 app lication 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 gene ral reference to “evidence in multiple hearings prior to the final trial” without citing any evidence in the record. Evidence from pr ior hearings for temporary orders that is not reintroduced at tr ial 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.).–8– 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 applicati on and Father’s petition were heard by an associate judge. Following the hearing, th e 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 he r application for a protective order to the trial court. At the de novo heari ng on the appeal, Mother’s counsel focused mainly on Mother’s request that the cour t interview M.N. in-chambers; no evidence was presented. The trial court confirme d the associate judge’s order and denied Mother’s request for a protective order. Based on the record before us, we canno t 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 mana ging conservators with Father having the exclusive right to determine the children’s primary residence. We resolve Mother’s second issue against her.–9– II. Section 153.009(a) In her first issue, Mother contends the trial court erred in fa iling to conduct an in-chambers interview with M. N., who was thirteen years ol d at the time of trial. Section 153.009(a) of the Texas Family C ode 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 y ears 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 determ ine the child’s prim ary residence.” T EX

. F AM

. C ODE A NN . § 153.009(a). The local rules for the 302nd Judicial District Court, where this case was tried, state the “Judge will conduct [an] inte rview if required, but only after completion of all other testimony, a nd only after scheduling the interview in advanc e . . . .” In this case, Father filed a motion more than a year before trial requesting the judge confer with the children. Approxi mately two months after the motion was filed, Mother filed a jury demand, making Father’s section 153.009 request inapplicable. Shortly before trial wa s scheduled to occur, however, Mother withdrew her request for a ju ry and immediately began a ttempting 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,–10– 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 302 nd 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 app ears that the Judge’s interview with the child shall take place follo wing 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 th e 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 tri gger the requirement th at the trial court interview M.N. The court re fused to conduct the interview stating that Mother had failed to file a written motion and she c ould not urge the motion filed by Father. On June 3, 2019, Mother filed a “Brie f 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, sh e had attempted to schedule an interview with M.N. to be conducted af ter 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.”–11– Several weeks later, Mother filed a “Motion for Judge to Confer with Children and Joinder of Petitioner’s Motion to Conf er.” 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 sign ed the final divorce decree one year later without having conducted an interview with M.N. The stated basis for the trial court’s de nial 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 re quire a formal motion. Nor does it distinguish between an or al or written application. 3 See In re C.B. , No. 13-11-00472- CV, 2012 WL 3139866, at *6 (T ex. App.—Corpus Christi—Edinburg Aug. 2, 2012, no pet.) (mem. op.) (oral request at clos e of evidence sufficient application); see also Bynum v. Shatto , 514 S.W.2d 808, 811 (Tex. App.—C orpus Christi 1974, writ ref’d n.r.e.) (oral motion sufficient where rule doe s 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. deni ed) (mem. op.), which suggests th e trial court ha s 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 reac hing 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 inte rview the children other than va gue 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 tr ial 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-cam era 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.–12– Even assuming her written request to the c ourt coordinator was insufficient by itself to constitute an application, Mother’s counsel made a clea r verbal application for an interview at the beginning of trial and filed written applica tions 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 inte rview is subject to a harm analysis. See
T EX

. R. A PP

. 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 anal ysis should be performed even when statute is mandatory). The sole matter ma de the subject of the mandatory interview is the child’s wishes as to conser vatorship and prim ary residence. See T EX

. F AM

. C ODE A NN . § 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 inte rests of the child.” Id. § 153.009(c). Acco rdingly, even if M.N. had expressed a prefer ence to live with Mo ther, 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 child ren of the marriage. “There is a long line of jurisprudence in Texa s supporting a preference that two or more children of a marriage should not be divided abse nt clear and compelling reasons.” Coleman , 109 S.W.3d at 112. This preference was codified by the legislature in section–13– 153.251(c) of the Texa s Family Code. T EX

. F AM

. C ODE A NN . § 153.251(c) (“It is preferable for all children to be togeth er during periods of possession.”). The court-appointed counselor who pr epared 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 re sidence. This opinion was based in part on his interviews with the children and a re view 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 Fath er’s parenting skill s 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 support s 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 tria l judge determined Mother’s application was without merit and denied her re quest for a protective order. The purpose of the mandatory in-camera in terview 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 Moth er, we cannot say that alone would present a clear and compelling reason to se parate her from her siblings. See Coleman , 109–14– 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 pa rt and dissenting in part.
200695F.P05 /Amanda L. Reichek / AMANDA L. REICHEK JUSTICE–15– 

# 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. NEWT ON recover his costs of this appeal from appellant MICHELLE A. NEWTON.
Judgment entered April 25, 2022