ChiefJustice James T. Worthen 

### Twelfth Court ofAppeals Justices Sam Griffith
Monday, July 31, 2006

Mr. H. Philip Campbell 100 E.Whitestone Blvd. Suite 148-272 Cedar Park, TX 78613 Mr. Scott R. Ellis 419 West Houston Tyler, TX 75702 Clerk Cathy S. Lusk

Chief StaffAttorney Margaret Hussey

RE: Case Number: 12-04-00290-CV Trial Court Case Number: 03-3354-D Style: Gina Lee Stucki

v. 

### Paul Daniel Stucki and In the Interest ofB.A.S., M.L.S., C.N.S, J.D.S and L.D.S, children 

### Enclosed is a copy of the Opinion issued this date in the above styled and numbered cause. Also enclosed is a copy ofthe Court's judgment. Very truly yours, CATHY S. LUSK, CLERK
By: 

# KdjUMu M.fi. Katrina McClenny, ChiefDeputy Clerk

CC: Hon. John Ovard Judge Carole W. Clark Ms. Lois Rogers

1517 West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193 ServingAnderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Rains, Rusk, Sabine, SanAugustine, Shelby, Smith, Trinity, Upshh Van Zandt and Wood Counties www.12thcoa.courts.state.tx.us 

# i

### NO. 12-04-00290-CV

IN THE COURT OF APPEALS



### TWELFTH COURT OF APPEALS DISTRICT

GINA LEE STUCKI V.
PAUL DANIEL STUCKI AND IN THE INTEREST OF B.A.S., M.L.S., C.N.S., J.D.S., AND L.D.S., CHILDREN 

### TYLER, TEXAS

APPEAL FROM THE 321ST

JUDICIAL DISTRICT COURT OF

SMITH COUNTY, TEXAS

OPINION Appellant Gina Lee Stucki appeals the trial court's reformed final decree ofdivorce. On 

### appeal, Gina presents seven issues. We reverse and remand in part and affirm in part.

Background 

### Gina and Paul Daniel Stucki were married on October 1, 1987 and are the parents offive 

### children, B.A.S., M.L.S., C.N.S., J.D.S., and L.D.S. The family lived in Winnsboro, Texas. On September 18, 2003, Gina and Paul separated and, in December, Gina moved with the children to Georgetown, Texas without prior notice to Paul. On December 18, Paul filed for divorce. In his 

### petition, Paul requested that he and Gina be appointedjointmanaging conservators ofthe children. 

### InGina's secondamended counterclaim, shecontendedthatPaulcommitted adulteryandphysically abused her and the children. Gina requested that she be appointed sole managing conservatorand 

### that, due to an alleged history offamily violence, Paul be appointed possessoryconservator with 

### visitationtotakeplace onlyintheGeorgetown orAustin area. Gina also askedthatPaulberequired to pay child support and spousal maintenance. Paul requested that the children's residence berestricted to Smith or Wood counties or any contiguous counties. In her counterclaim, Gina asked that she be given the exclusive right to designate the primary residence of the children without geographic restriction. The trial court issued temporary orders on March 18, 2004 appointing Gina and Paul temporaryjoint managing conservators ofthe children. In the order, the trial court gave Gina the 

### exclusive right to designate the primary residence ofthe children within the city ofGeorgetown. According to the order, Paul was allowed weekend possession ofthe children on the first, third, and 

### fifth weekends ofthe month, with the exchange ofthe children to take place in Corsicana, Texas. 

### On the fourth weekend ofthe month, Paul was allowed Saturday visitation in Georgetown. Paul was ordered to pay Gina the amount of$3,800 per month. 

### After a final trial on May 25 and 26, 2004, the trial court signed a final decree ofdivorce 

### appointing Gina and Paul as joint managing conservators ofthe children. Among other orders, the 

### trial court orderedthat Paul pay $1,750 per month in child support and $2,500 per month in spousal maintenance. Additionally, the trial court gave Gina the exclusive right to establish the children's 

### primaryresidence,which was to be Smith Countyand/or anycontiguouscounty. However,the trial court found that it was not in the best interest ofB.A.S. to be required to reside, against her wishes, in Smith County and/or any contiguous county. The trial court allowed Gina to establish B.A.S.'s 

### primaryresidence withotherfamily members inWilliamson County and/oranycontiguous county. After amotion for new trial and/or to reformjudgment and a hearing, the trial court reformed 

### thefinal decree ofdivorce. In itsreformed decree, thetrialcourtorderedthatPaulpaychildsupport 

### intheamount of$2,187 permonth. The trial court also awarded Gina afiftypercent interestinany and all of Paul's insurance renewal commissionspayable on policies written on or before May 26, 2004. Paul was obligated to pay these renewal commissions to Gina only "if, as and when" Paul 

### received such commissions. Further, the trial court sua sponte struck the award of spousal 

### maintenancetoGina. Thereformeddecree also changedthelanguageoftheformerdecreeregarding the trial court's applicability of the residency requirement to B.A.S.,finding that it was not in her 

### bestinterest "due to priorfamily violence andmental abuse committed against" B.A.S. byPaul. This appeal followed.Spousal Maintenance In her third issue, Gina contends that the trial court abused its discretion by sua sponte deleting the award ofspousal maintenance. Gina argues that the evidence was legally and factually 

### insufficient to support a finding that the sua sponte removal was proper under section 8.051 ofthe Texas Family Code. Paul disagrees, arguing that the trial court was within its rights to reform and/or modify its prior ruling as it deemed appropriate. Morever, Paul contends that withdrawing the spousal maintenance award was justified because Gina failed to rebut the presumption in section 8.053 ofthe Texas Family Code. Applicable Law 

### A motion for new trial shall be filed prior to or within thirty days after the judgment is 

### signed. Tex. R. Civ. P. 329b(a). Ifa motion for new trial is timely filed by any party, the trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform thejudgment until 

### thirty days after all such timely filed motions are overruled. Tex. R. Civ. P. 329b(e). If a motion for new trial or motion to modify, correct, or reform ajudgment is not determined by written order 

### signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation oflaw on expiration ofthat period. Tex. R. Civ. P. 329b(c). A motion to modify, correct, or reform shall extend the trial court's plenarypower in the same manner as a motion for new trial. 

### Tex. R. Civ. P. 329b(g). During the time it retains plenary power, a trial court has the power to correctjudicial mistakes as well as vacate or set aside ajudgment. See Tex. R. Civ. P. 329b; Davis
v.Shanks, 911 S.W.2d 390, 396 (Tex. App.-Texarkana 1994), rev 'don othergrounds, 898 S.W.2d 285 (Tex. 1995). 

### A trial court may order maintenance for either spouse only ifthe duration ofthe marriage was 

### ten years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under the family code, to provide for the spouse's minimum reasonable needs, and the spouse seeking maintenance clearlylacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs. Tex. Fam. Code Ann. 

### § 8.051(2)(C) (Vernon 2006). If a court determines that a spouse is eligible to receive maintenance, 

### it shalldetermine thenature, amount, duration, andmannerofperiodic payments byconsidering all relevant factors, including the financial resources ofthe spouse seeking maintenance, such as thecommunity and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently. Id. § 8.052(1) (Vernon 2006). There is a statutorypresumptionthat maintenance "is notwarranted." Id. § 8.053(a) (Vernon 2006). The spouse seeking maintenance must rebut the presumption that maintenance is not warranted by exercising diligence in seeking suitable employment or developing the necessary skills to become self-supporting during separation and during the time when the suit for dissolution is pending. Id. § 8.053(a). Analysis The final decree ofdivorce was signed on June 18,2004. Ginatimely filed amotion for new 

### trial and/or to reformjudgment on July 19, 2004. See Tex. R. Civ. P. 329b(a). Because ofGina's 

### motion, the trial court's plenary power was extended, and it had the power to change or alter its judgmentwithin seventy-five days after the final decree ofdivorce was signed. See Tex. R. Civ. P. 329b(c), (e), (g); ValleySteelProducts, Co. v. Howell, 775 S.W.2d 34,36 (Tex. App.-Houston [1st 

### Dist] 1989, no writ). The trial court's reformed final decree ofdivorce was signed on August 27, within the time period ofthe court's plenary power. See Tex. R. Civ. P. 329b(c). Therefore, the trial court had the power to reform its final decree ofdivorce. We must, however, determine ifthe 

### trial court acted within its discretion insua spontedeleting the award ofspousal maintenance. We 

### review both an award, or lack thereof, ofspousalmaintenanceand the trial court's power to reform its decree of divorce under an abuse of discretion standard. See Sheshtawy v. Sheshtawy, 150 S.W.3d 772, 777 (Tex. App.-San Antonio 2004, pet. denied); Davis, 911 S.W.2d at 396. The test 

### for abuse ofdiscretion is whether the trial court acted without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In other words, whether the 

### trial court's actions were arbitrary or unreasonable. Id. Under this standard of review, legal and factual sufficiencyof the evidence, althoughnot independent grounds for asserting error, arerelevant factors in assessing whether the trial court abused its discretion. Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex. App.-Dallas 1999, no pet.). At trial, Gina testified that she had never worked and, in the six months before trial, had done 

### nothing to help withfinances. Paul admittedthat Gina lackedskillsor training,but believedthat she could be a "fantastic" salesperson. However, Paul stated that he did not want her to work, butwanted her to remain at home raising the children. From his testimony, Paul appeared to want Gina to stay home even after the divorce. Paul testified that, apart from him, Gina did not have any independent financial resources. Gina stated that she was enrolled at a local community college and

was attempting to enter the nursing program. At the time oftrial, Gina was taking a developmental math program and, ifher prerequisites were satisfactorily completed, she would be able to enter the nursing program in the spring. Gina's mother, Sandra Sanchez, admitted that Ginahad not worked since moving to Georgetown after the parties separated and had not taken any classes as ofthe date oftrial. In its final decree ofdivorce, the trial court found that Gina was eligible for maintenance. In a hearing on Gina's motion for new trial and/or to reformjudgment, the trial court increased its award ofchild support and deleted all references to "alimony" or maintenance. However, the trial court also awarded Gina a fifty percent interest in any and all ofPaul's renewal commissions. 

### Even though Gina was eligible for spousal maintenance, such award was not mandated by the Family Code. See Tex. Fam. Code Ann. § 8.051(2)(C), 8.053(a). Admittedly, Gina had not worked since the parties separated, although she was, at the time oftrial, showing some attempt to develop skills to become self-supporting. See id. § 8.053(a). Further, by awarding fifty percent of Paul's renewal commissions to Gina, the trial courtincreased Gina's financial resources. This award 

### could have been a factor in determining whether to award spousal maintenance. See id. § 8.052(1). 

### These factors could have led the trial court to reconsider its award of spousal maintenance and change its final decree ofdivorce. Because evidence was presented regarding Gina's lackofearning capacity and her diligence in obtaining employment or suitable skills to support herselfand the trial
court awarded her additional financial resources, we cannot conclude that the trial court abused its discretion in deleting the award ofspousal maintenance from its reformed decree ofdivorce. See Sheshtawy, 150 S.W.3d at 777; Davis, 911 S.W.2d at 396. Accordingly, Gina's third issue is
overruled.

Child Support 

### In her sixth issue, Gina contends that the trial court abused its discretion by awarding only 

### $2,187per month in child support. Gina arguesthat the evidenceis legallyand factuallyinsufficient to support a finding ofchild support below the sum of$2,400 per month. Paul disagrees.Applicable Law A trial court shall calculate net resources for the purpose of determining child support 

### liability. Tex. Fam. Code Ann. § 154.062(a) (Vernon 2002). Resources include one hundred percent of all wage and salary income and other compensation for personal services, including commissions, overtime pay, tips, and bonuses. Id. § 154.062(b)(1) (Vernon 2002). Further, in its discretion, the trial court may exclude from self-employment income amounts allowable under federal income tax law as depreciation, tax credits, or any other business expenses shown by the evidence to be inappropriate in making the determination ofincome available for the purpose of calculating child support. Id. § 154.065(b) (Vernon 2002). A trial court's orderofchild supportwill not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Worford, 801 S.W.2d at 109. Analysis Paul testified that, according to his 2003 income tax return, his gross income was $121,140, including a one time $20,000 bonus. He calculated his child support based on a gross income of $101,000, subtracting self-employment taxes, gasoline, and health insurance. As such, Paul stated that he had an adjusted gross monthly income of$5,467.13. Paul testified that, based on a gross annual income of$101,000, his child support shouldbe $2,186.85. Gina disagreed that the $20,000 bonus was a one time bonus and testified that Paul's employer continuously "offer[s]" bonuses. In the original decree ofdivorce, the trial court ordered Paul to pay $1,750 per month based upon an adjusted gross income of$56,000 peryear and the additional needs ofthe children. In the reformed 

### decree ofdivorce, the trial court changed the amount ofchild support to $2,187 per month. The reformed decree stated that the child support was based on Paul's adjusted netresources of$65,606. The record includes no testimonyor otherevidence to supportthis amount ofadjusted net resources. Nor does it appearthat the trial court changed the amount ofchild supportbased on a higher amount ofadjusted yearly income. Instead, in a hearing regarding child support and spousal maintenance, 

### the trial court stated that it increased child support by changing previously ordered spousal maintenance to child support. 

### Regardless ofthe statement in the reformed decree ofdivorce, it appears that the trial court 

### based its original and reformed orders ofchild support on Paul's gross income of $101,000 andomitted the $20,000 bonus from his resources. As such, the trial court's calculation ofPaul's child support directly contradicts the plain language ofthe statute that includes bonuses in resources. See 

### id. § 154.062(b)(1). Although the trial court heard testimony regarding Paul's business expenses, there was no testimony or evidence that the bonus was depreciation, a tax credit, or any other business expense. See id. § 154.065(b). Therefore, because the trial court did not consider Paul's $20,000 bonus as apart ofhis resources for purposes ofdetermining child support, we conclude that the trial court abused its discretion. See Worford, 801 S.W.2d at 109. Accordingly, Gina's sixth
issue is sustained.

Child Support Arrearage In her seventh issue, Gina argues that the trial court abused its discretion by failing to find
an arrearage in Paul's child supportunderthe temporaryorders. Ginacontends that the evidencewas 

### legally and factually insufficient to support a finding that there was no arrearage. Paul argues that Gina waived her right to assert this claim on appeal because she failed to plead for any arrearage. An appellate courtreviews a trial court's decision regarding child support for an abuse ofdiscretion. In re Tucker, 96 S.W.3d 662, 664 (Tex. App.-Texarkana 2003, no pet.). The judgment ofa trial 

### court shall conform to the pleadings ofthe parties. Tex. R. Civ. P. 301; Cunningham v. Parkdale 

### Bank, 660 S.W.2d 810, 812 (Tex. 1983). Further, a party may not obtain ajudgment based upon a theory not pleaded. Affiliated Capital Corp. v. Musemeche, 804 S.W.2d 216, 219 (Tex. App-Houston [14thDist] 1991, writ denied). Thus, a party may not be granted reliefin the absence ofpleadings to support that relief. Cunningham, 660 S.W.2d at 813; Holmstrom v.Lee, 26 S.W.3d 526, 532 (Tex. App.-Austin 2000, no pet.). Gina did not file a written pleading or motion for 

### enforcement to support her claim for an arrearage ofchild support. Because Gina failed to support her claim with proper pleadings, the trial court did not abuse its discretion by failing to find an arrearage ofchild support. Accordingly, Gina's seventh issue is overruled.

Sole Managing Conservator In her fourth issue and as part ofher fifth issue, Gina contends that the trial court abused its 

### discretion by failing to appoint Gina as solemanaging conservatorbecausePaulcommitted family

### violence against Gina and her children during the marriage. Paul argues that the languageregarding family violencewas included in the reformed final decreeofdivorce prepared by Gina's attorneyand is inconsistent with the trial court's record or findings offact and conclusions oflaw. Finding in Reformed Decree ofDivorce We must first ascertain whether there was a finding offamily violence. As noted above, the reformed final decree ofdivorce statedthat B.A.S. was not requiredto reside in Smith County and/or 

### any contiguous county because the trial court found it was not in her best interest "due to prior family violence and mental abuse committed against" B.A.S. by Paul. The Texas Rules ofCivil Procedure 

### state that findings offact shall not be recited in ajudgment. Tex. R. Civ. P. 299a. Ifthere is a conflict between findings offact recited in ajudgment in violation ofthis rule and findings offact pursuant to rules 297 and 298 ofthe Texas Rules ofCivil Procedure, the latter findings will control. Tex. R. Civ. P. 299a. When findings offact are filed by the trial court, they shall form the basis of the judgment upon all grounds ofrecovery and ofany defense embraced therein. Tex. R. Civ. P. 299; Guridi v. Waller, 98 S.W.3d 315, 316 (Tex. App.-Houston [1st Dist.] 2003, no pet.). At no time prior to the reformed decree did the trial court make a finding offamily violence. As such, withno findings offact on the issue offamily violence, we maynot presume such a finding. See Guridi, 98 S.W.3d at 316. Thus, we must consider the evidence in order to determine whether the trial court erred in appointing Paul as ajoint managing conservator. Sole Managing Conservator In determining conservatorship, the best interest of the child shall be the primary consideration. Tex. Fam. Code Ann. § 153.002 (Vernon 2002). The trial court has wide latitude in determining the best interest ofa child, and the decision ofthe trial court will be reversed only when it appears from the record as a whole that the court has abused its discretion. Marriage of Stein, 153 S.W.3d 485,488 (Tex. App.-Amarillo 2004, no pet.). It is a rebuttable presumption that the appointment ofthe parents ofa child asjoint managing conservators is in the best interest ofthe 

### child. Tex. Fam. CodeAnn. § 153.131(b) (Vernon 2002). A finding ofahistory offamily violence involving the parents ofthe child removes the presumption. Id. 

### Evidence offamily violence determines whether a trial court may appoint the parties asjoint managing conservators. See id. § 153.004 (Vernon Supp. 2005). The trial court shall consider

8evidence ofthe intentional use ofabusive physical force by a party against the party's spouse, a 

### parent of the child, or any person younger than eighteen years ofage committed within a two year 

### period preceding the filing ofthe suit or during the pending ofthe suit. Id. § 153.004(a) (Vernon Supp. 2005). If credible evidence is presented of a history or pattern ofpast or present physical abuse by one parent directed against the other parent or a child, the trial court may not appointjoint managing conservators. Id. § 153.004(b) (Vernon Supp. 2005). In determining whether there is credible evidence, the trial court shall consider whether a protective order was rendered against the 

### parent during the two year period preceding the filing ofthe suit or during the pending ofthe suit. Id. § 153.004(f) (Vernon Supp. 2005). "Familyviolence" 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 ofimminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself. Id. § 71.004(1) (Vernon 2002). "Family violence" is also abuse by a member ofa family toward a child ofthe family. Id. § 71.004(2). "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 ofharm. Id. § 261.001(1)(A), (C) (Vernon Supp. 2005). At trial, Ginatestifiedto some incidents ofalleged family violence. However, these incidents occurred prior to two years preceding the filing ofthe suit. She also testified that, about a year ago, Paul threw a remote control at her, but struck L.D.S. instead. Gina admitted that she described Paul
as a great father in a previous hearing. Gina stated that Paul had called some ofthe children names, which was contrary to her previous testimony. Gina testified that the incidents ofname calling occurred after the hearing and, more particularly, during Paul's visits to Georgetown. Then, she stated that Paul had called the children names before the hearing, just not "vile" names. She 

### admitted calling Paul disparaging names. Paul testified that he had been physically, verbally, and mentally abused during the marriage. He alleged that he was kicked in the ribs every night and 

### punched in the face. Despite these accusations, Paul admitted that he and Gina took a trip to Hawaii together approximately one month before trial. According to Paul, they shared a hotel room.B.A.S. had heard her father call her mother "bad" names." B.A.S. stated that, in October of 2003, Paul sat on her after they had an argument. She asked him to get up, but he refused. B.A.S. 

### testified that she got mad, pushed Paul off, and ran to her room. According to B.A.S., on the afternoon ofMay 7,2004, she, Gina, Paul, and three ofher siblings were in Gina's suburban. B.A.S.


### was driving and, at some point, Paul began questioning B.A.S. and she refused to respond. B.A.S. believed she may have told Paul that she hoped he would "go to hell." Paul became upset and hit her on the head with a book. B.A.S. testified that Paul hit her hard enough to give her a headache, but not hard enough to seriously hurt her. According to B.A.S., she asked Paul to stop, but he refused to do so ifshe continued to speakrudely. At that point, B.A.S. stated that Paul hit her again on the back ofthe head. B.A.S. testified that on their way home, Paul told her that she was going to be a "slutty bitch" like her mother. Dr. Wade French testified that, after meeting with all the children, he never received the impression that Paul abused the children. None ofthe children told him that Paul was abusing them
or theirmother. Regarding Paul's allegedly striking B.A.S. on the headwith abook, French testified that he would have to look at that incident in the context ofits origin, a highly charged emotional atmosphere. French did not believe that this incident was strong evidence that Paul was a danger 

### to the children. AmberYoung, a friend ofthe family, stated that, in the year before trial, B.A.S. was doing homework and Paul asked her to take out the trash. When she did not immediately take out the trash, Paul walked over, grabbed her arm, and pulled her from the chair across the floor to the 

### door. According to Young, B.A.S. got mad and yanked her arm away. Lisa Carol Lloyd, Gina's friend, stated that she had seen the effects ofabuse on Gina in the past. Lisa testified that in 2002 Paul admitted abusing Gina because he stated that he hit Gina with his fist on the side ofher head. According to Lisa, Paul stated that he feltjustified because Gina hit him. Lisa observed bruises on the side ofGina's body and a cut on her ear. However, Gina told Lisa that Paul was an excellent
father. 

### The trial court was in a better position than an appellate court to determine what was in the best interest ofthe children because the trial court observed the parties and witnesses, noted their demeanor, and had the opportunity to evaluate their claims. See Martinez v. Molinar, 953 S.W.2d 

### 399,403 (Tex. App.-El Paso 1997, no writ). B.A.S. admitted that Paul did not hit her hard enough

10

### to seriously injure her. French stated that the incident must be looked at in the context ofthe family history and did not believe that this incident was evidence that Paul was a danger to the children. Paul's action was not a physical injury that resulted in substantial harm to B.A.S. See Tex. Fam. Code Ann. § 261.001(1)(C). Nor did the action result in physical harm or bodily injury to B.A.S. See id. § 71.004(1). Although there was testimony that Paul called Gina and some ofthe children names, there was no testimony that the children suffered observable and material impairment as a result. See id. § 261.001(1)(A). Moreover, none ofthe children told French that they had been abused. Even though bothparents and Lisa testified to family violence, the trial courtwas in abetter position to evaluate their claims and believe or disbelieve them. See Martinez, 953 S.W.2d at 403. Although we do not take claims offamily violence lightly, we cannot conclude from the record before us that the trial court abused its discretion in determining that Gina failed to rebut the 

### presumption that both parents shouldbe appointedjointmanaging conservators ofthe children. See 

### id. § 153.131(b). Accordingly, Gina's fourth issue and the portion ofher fifth issue regarding sole managing conservatorship are overruled.

Split Residency 

### In her first issue, Gina contends that the trial court abused its discretion by permitting B.A.S. to remain in Williamson County while imposing a residency restriction on her other children, 

### effectively ordering the separation ofthe children ofthe same marriage. Gina argues that the trial court did not articulate any clear or compelling reason for its order. Paul contends that the trial court's ruling did not divide the family, but, instead, allowed B.A.S. to make her own decision whether to live with Gina and her siblings or remain in Georgetown. The trial court has wide latitude in determining the best interest ofa child, and the decision 

### ofthe trial court will be reversed only when it appears from the record as a whole that the court has 

### abused its discretion. Marriageof Stein, 153 S.W.3d at 488. The trial court, in open court, stated that it would not force B.A.S. to visit with Paul because she was "so aligned." In its reformed decree 

### ofdivorce, the trial court found that it was not in B.A.S.'s best interest to be required to reside, against her wishes, in Smith County and/or any contiguous county. The trial court allowed Gina to 

### establish B.A.S.'s primaryresidence with otherfamily members inWilliamson County and/or any

11contiguous county. The evidence at trial showed that Paul and B.A.S. had a strained and difficult relationship. B.A.S. testified that she and Paul do not "always get along," but that she enjoyed seeing him when he was in apleasant mood. B.A.S. admitted that when she and Paul were together, they "always end up getting in a fight or getting mad at each other." They yell at each other, and B.A.S. stated that Paul "sometimes" calledhernames. B.A.S. admitted that, afterPaul hit herwith the book, she asked for Gina's cellular telephone to call Gina's lawyer and inform him ofthe incident. In fact, B.A.S. stated that she might have said that she was going to call the police. B.A.S. did not believe that she called Paul a "faggot" that day, but admitted that she had done so previously. Paul admitted that his relationship with B.A.S. was strained. Amber Young, a friend ofthe family, admitted that B.A.S.
was angry at Paul. She stated that B.A.S. yelled at Paul and that they argued. Because B.A.S. and Paul had a strained relationship, the trial court did not abuse its discretion by not forcing B.A.S. to live in Smith County and/or any contiguous county. Ginapoints out that custody ofchildren ofthe same marriage should not be divided. However, the trial court's ruling did notresult in divided custody ofthe children. See MacDonaldv. MacDonald, 821 S.W.2d 458, 463 (Tex. App.-Houston [14th Dist.] 1992, no writ). Accordingly, Gina's first issue is
overruled.

Residency Restriction In her second issue and as part ofher fifth issue, Gina contends that the trial court abused its 

### discretion by imposing a residency restriction against her and her four younger children. Gina argues thatthe evidence is legallyand factually insufficientto support afinding thatthe residencyrestriction is in the best interest ofthe children. Paul disagrees, arguing that stabilityin the children's home and surroundings and the wide latitude given a court in determining the best interest ofthe children support the trial court's decision. Applicable Law 

### The public policy ofthe State ofTexas is to assure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest ofthe children and to 

### encourage parents to share in the rights and duties ofraising their children after the parents have

12

### separated or dissolved their marriage. Tex. Fam. Code Ann. § 153.001(a)(1), (3) (Vernon 2002). The best interest ofthe children shall be the primary consideration ofthe court in determining the 

### issues ofconservatorship and possession ofand access to the children. Id. § 153.002 (Vernon 2002). The trial court has wide latitude in determining the best interest ofa child, and the decision ofthe trial court will be reversed only when it appears from the record as awhole that the court has abused 

### its discretion. Marriage ofStein, 153 S.W.3d at 488. When rendering an order appointingjoint managing conservators, the court shall designate the conservator who has the exclusive right to determine the primary residence ofthe children and establish, until modified by further order, a geographic area in which the children are to reside and any contiguous county thereto within which the conservator shall maintain the children's primary residence. Id. § 153.134(b)(1)(A) (Vernon 2002). The court may also specify that the conservator may determine the children's primary residence without regard to geographic location. Id. § 153.134(b)(1)(B) (Vernon 2002). Analysis In September2003, Paul moved to Tyler from the family home in Winnsboro. In December 2003, Gina moved with the children to Georgetown without informing Paul. The temporary orders 

### obligated Gina to surrender the children to Paul in Corsicana on the first, third, and fifth Friday of each month. Paul stated that, since Gina's move, he had seen the children virtually every weekend. However, Paul testified that he drove to Georgetown to visit the children for eighteen ofthe twentythree weekends since the temporary orders. Although Paul asked Ginato meethim halfwaywith the children, it had never happened. According to Paul, Gina would tell him that the children had extracurricular activities and could not come to Tyler. In fact, several times his children called him crying that they would have to miss an activity and would ask him to come to Georgetown. Gina recalled that, in December 2003, she told the trial court that, if she were allowed to live in Georgetown, she would meet Paul halfway every weekend so that he could stay involved with the children. She claimed that she met Paul halfway every first and third weekend, but then admitted that she met him halfway three or four times. Gina admitted that Paul had seen the children all but

one weekend. 

### Paul believed that it was in the children's best interest for them to live close enough so that he could see them daily and was worried about the effect that the long distance would have on their

13

### relationship. Gina stated that she did not want Paul to see the children less, just to realize that he cannot do "those things" to the children. French recommended that the children be allowed to stay 

### in Georgetown, but that Paul be granted at least minimum standard visitation. Further, he recommended that Gina be required to bring the children to Athens at least once a month and that 

### Paul be required to go to Georgetown another weekend during the month. French testified that the children needed to spend their time visiting with the parent, not in the back seat ofan automobile. French agreed that the distancebetweenTyler and Georgetownwouldput time restrictions on Paul's relationship with his children. However, French stated that visitation was complicated because of the children's activities. In French's opinion, ifPaul obligated the children to come to Tyler twice per month, then they would be very upset with him when they missed weekend activities. In the reformed decree ofdivorce, the trial court ordered that the primary residence ofthe children, except B.A.S., be Smith County and/or any contiguous county. Gina was given the 

### exclusive right to establish the children's primary residence within Smith County and/or any contiguous county. Both orders were permitted by statute. See id. § 153.134(b)(1)(A). Paul and Gina admitted that, during the pendency ofthe temporary orders, surrendering the children halfway between Tyler and Georgetown was a failure. As a result, Paul traveled almost every weekend to Georgetown, a burden not contemplated by the temporary orders. The trial court could have found that the previous long distance visitation was unworkable. Both parents agreed that it was in the children's best interest to be close to them. Although French recommended that the children be allowed to live in Georgetown, he admitted that the long distance could have an effect on the 

### children's relationship with Paul. Because it was in the children's best interest to have frequent and continuing contact with their parents and the previously ordered visitation failed, the trial court did not abuse its discretion in ordering that the primary residence ofthe children, except B.A.S., be 

### Smith County and/or any contiguous county. See Marriage ofStein, 153 S.W.3d at 488. Accordingly, Gina's secondissue and the portionofher fifth issue regarding the residencyrestriction

are overruled.

Conclusion 

### Having sustained Gina's sixth issue, we reverse the reformed decree ofdivorce regarding

14

### child supportand remand to the trial court for an award consistent with this opinion. In all other respects, the trial court's reformed decree ofdivorce is affirmed.

Opinion delivered July 31, 2006. Panel consisted ofWorthen, C.J. and Griffith, J.

(PUBLISH)

15 JAMES T. WORTHEN ChiefJustice

### COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS 

### JUDGMENT

JULY 31, 2006

NO. 12-04-00290-CV
GINA LEE STUCKI
V. PAUL DANIEL STUCKI AND IN THE INTEREST OF B.A.S., M.L.S., C.N.S., J.D.S. AND L.D.S., CHILDREN

Appeal from the 321st Judicial District Court ofSmith County, Texas. (Tr.Ct.No. 03-3354-D)
THIS CAUSE cameto be heardon the appellaterecord and briefs filed herein, and the same being inspected, it is the opinion ofthis court that there was error in a portion ofthe trial court's reformed decree ofdivorce, and that the same should be affirmed in part and reversed and remanded in part. It is therefore ORDERED, ADJUDGED and DECREED that the portion of the trial court's reformed decree of divorce regarding child support be reversed and the cause remanded for further proceedings in accordance with the opinion ofthis court; that in all other respects, the reformed decree ofdivorce ofthe trial court is affirmed; and that all costs ofthis appeal
are hereby adjudged against the Appellee, Paul Daniel Stucki, for which execution may issue,
and that this decision be certified to the court below for observance. James T. Worthen, ChiefJustice. Panel consisted ofWorthen, C.J. and Griffith, J.