ChiefJustice

James T. Worthen

Twelfth Court of Appeals

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

Serving Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Rains, Rusk, Sabine, San Augustine, 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 of divorce. 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 of five

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 appointed joint managing conservators ofthe children.

InGina's secondamended counterclaim, shecontended thatPaulcommitted adulteryandphysically

abused her and the children. Gina requested that she be appointed sole managing conservatorand

that, due to an alleged history of family violence, Paul be appointed possessoryconservator with

visitation totake place only intheGeorgetown orAustin area. Gina also asked thatPaul berequired

to pay child support and spousal maintenance. Paul requested that the children's residence be
restricted 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

temporary joint managing conservators ofthe children. In the order, the trial court gave Gina the

exclusive right to designate the primary residence of the children within the city of Georgetown.

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 of divorce

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

primary residence withotherfamily members inWilliamson County and/oranycontiguous county.

After amotion for new trial and/or to reformjudgment and a hearing, the trial court reformed

the final decree of divorce. In itsreformed decree, thetrialcourtordered thatPaulpaychildsupport

intheamount of $2,187 permonth. The trial court also awarded Gina a fifty percent interest in any

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

maintenance toGina. Thereformed decree also changed thelanguage oftheformer decree regarding

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

best interest "due to prior family violence and mental abuse committed against" B.A.S. by Paul.

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). If a 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 the judgment 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 a judgment 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 plenary power 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

correct judicial mistakes as well as vacate or set aside a judgment. 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, andmanner of periodic payments byconsidering all

relevant factors, including the financial resources ofthe spouse seeking maintenance, such as the
community 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 statutory presumption that maintenance "is not warranted." 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. Gina timely filed a motion for new

trial and/or to reform judgment on July 19, 2004. See Tex. R. Civ. P. 329b(a). Because of Gina's

motion, the trial court's plenary power was extended, and it had the power to change or alter its

judgment within seventy-five days after the final decree ofdivorce was signed. See Tex. R. Civ. P.

329b(c), (e), (g); Valley SteelProducts, Co. v. Howell, 775 S.W.2d 34,36 (Tex. App.-Houston [1st

Dist] 1989, no writ). The trial court's reformed final decree of divorce 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 in sua 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 of discretion 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 sufficiencyofthe 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 with finances. Paul admittedthat Gina lackedskillsor training,but believedthat she

could be a "fantastic" salesperson. However, Paul stated that he did not want her to work, but
wanted 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 Gina had not worked

since moving to Georgetown after the parties separated and had not taken any classes as ofthe date

oftrial. In its final decree of divorce, the trial court found that Gina was eligible for maintenance.

In a hearing on Gina's motion for new trial and/or to reform judgment, the trial court increased its

award of child support and deleted all references to "alimony" or maintenance. However, the trial

court also awarded Gina a fifty percent interest in any and all of Paul'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'srenewal commissions to Gina, the trial court increased 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 lack ofearning

capacity and her diligence in obtaining employment or suitable skills to support herself and 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 of divorce. 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 of child 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 of income available for the purpose of

calculating child support. Id. § 154.065(b) (Vernon 2002). A trial court's order ofchild support will

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 should be $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 of divorce, the trial court ordered Paul to pay $1,750 per month based upon an

adjusted gross income of$56,000 per year and the additional needs ofthe children. In the reformed

decree of divorce, 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 net resources of$65,606.

The record includes no testimony or other evidence to support this amount ofadjusted net resources.

Nor does it appear that the trial court changed the amount ofchild support based on a higher amount

of adjusted 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 of divorce, it appears that the trial court

based its original and reformed orders ofchild support on Paul's gross income of $101,000 and
omitted 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 a part 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 support under the temporary orders. Gina contends that the evidence was

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 court reviews 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 of a 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 a judgment based upon

a theory not pleaded. Affiliated Capital Corp. v. Musemeche, 804 S.W.2d 216, 219 (Tex.

App-Houston [14th Dist] 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; Holm strom 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 of her fifth issue, Gina contends that the trial court abused its

discretion by failing to appoint Gina as solemanaging conservator becausePaul committed family
violence against Gina and her children during the marriage. Paul argues that the languageregarding

family violencewas included in the reformed final decree ofdivorce prepared by Gina's attorneyand

is inconsistent with the trial court's record or findings offact and conclusions oflaw.

Finding in Reformed Decree of Divorce

We must first ascertain whether there was a finding offamily violence. As noted above, the

reformed final decree ofdivorce stated that B.A.S. was not required to 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 of fact shall not be recited in a judgment. Tex. R. Civ. P. 299a. If there is a

conflict between findings offact recited in a judgment 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 of any 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, with no findings offact on the issue offamily violence, we may not 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 a joint 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 of a 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 as joint managing conservators is in the best interest ofthe

child. Tex. Fam. Code Ann. § 153.131(b) (Vernon 2002). A finding ofa history 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

8
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 eighteen years of age 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 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. 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).

"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. Id. § 71.004(1) (Vernon 2002). "Family violence" is also abuse by a member of a

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

of harm. Id. § 261.001(1)(A), (C) (Vernon Supp. 2005).

At trial, Gina testified to 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 of name 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 speak rudely. 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 their mother. Regarding Paul's allegedly striking B.A.S. on the head with a book, 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. Amber Young, 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 of abuse 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 of her head.

According to Lisa, Paul stated that he felt justified because Gina hit him. Lisa observed bruises on

the side of Gina'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 of the children told French that they had been

abused. Even though both parents and Lisa testified to family violence, the trial court was in a better

position to evaluate their claims and believe or disbelieve them. See Martinez, 953 S.W.2d at 403.

Although we do not take claims of family 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 should be appointedjoint managing conservators ofthe children. See

id. § 153.131(b). Accordingly, Gina's fourth issue and the portion of her 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 of a 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 ofStein, 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

of divorce, 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 in Williamson County and/or any

11
contiguous 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 a pleasant 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" called her names. B.A.S. admitted that, after Paul hit her with 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. Gina points

out that custody of children ofthe same marriage should not be divided. However, the trial court's

ruling did not result in divided custody ofthe children. See MacDonald v. 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

that the evidence is legally and factually insufficient to support a finding that the residency restriction

is in the best interest ofthe children. Paul disagrees, arguing that stability in the children's home and

surroundings and the wide latitude given a court in determining the best interest of the 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 of the children and to

encourage parents to share in the rights and duties of raising 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 of a 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 ofStein, 153 S.W.3d at 488. When rendering an order appointing joint

managing conservators, the court shall designate the conservator who has the exclusive right to

determine the primary residence of the 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 September 2003, 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 Gina to meet him halfway with 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 of an automobile.

French agreed that the distance between Tyler and Georgetown would put 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 of divorce, the trial court ordered that the primary residence of the

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 of the children, except B.A.S., be

Smith County and/or any contiguous county. See Marriage of Stein, 153 S.W.3d at 488.

Accordingly, Gina's second issue and the portion ofher fifth issue regarding the residency restriction

are overruled.

Conclusion

Having sustained Gina's sixth issue, we reverse the reformed decree of divorce regarding

14
child support and remand to the trial court for an award consistent with this opinion. In all other

respects, the trial court's reformed decree of divorce is affirmed.

Opinion delivered July 31, 2006.

Panel consisted of Worthen, 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

of Smith County, Texas. (Tr.Ct.No. 03-3354-D)

THIS CAUSE came to be heard on the appellate record 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 of divorce, 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 of this 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 of Worthen, C.J. and Griffith, J.