BROOK v. BROOK

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Docket Number

No. D-4530.

Advocates

Evelyn T. Ailts, Houston, Richard R. Orsinger, San Antonio, and William Soffar, Bellaire, for petitioner. Michael P. Von Blon, Houston, for respondents.

Judges

Lloyd Doggett

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Smart Summary

Factual and Procedural Background

After Jerry Brook filed for divorce, Bonnie Brook sought sole managing conservatorship of their daughter or, alternatively, joint managing conservatorship with her parents, Lawrence and Barbara Behrmann. [1]

Following the jury’s decision, the trial court appointed Bonnie and her parents as joint managing conservators and found that the arrangement was in the child’s best interest. [1] The court of appeals affirmed, and the Supreme Court of Texas considered Jerry’s appeal. [2]

Legal Issues Presented

What finding is required under Texas Family Code section 14.01(b)(1) before a parent and a nonparent may be appointed joint managing conservators? [2]
Does the heightened “significant impairment” standard apply when a nonparent shares joint custody with a parent, or does the court apply the child’s best-interest standard? [3][4]

Arguments of the Parties

Jerry Brook’s Arguments

Jerry argued that joint custody between a parent and a nonparent could be awarded only after satisfying section 14.01(b)(1)’s heightened requirements. [3]
He also argued that the court of appeals should have detailed the supporting evidence, that the trial court abused its discretion in admitting one witness’s testimony, and that legally sufficient evidence did not support the jury’s verdict. [5]

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gay v. Gay, 737 S.W.2d 94	Custody is awarded according to the child’s best interest when parents seek custody.	The court cited it in describing the best-interest standard. [6]
Lewelling v. Lewelling, 796 S.W.2d 164	The best interest of a child is presumed to be served by awarding custody to a natural parent.	The court relied on the case to explain the parental preference codified in section 14.01(b)(1). [7][8]
Mauzy v. Legislative Redistricting Board, 471 S.W.2d 570	Words may be interpolated into an unclear statute when necessary to achieve clear legislative intent, but not when doing so defeats overriding intent.	The court refused to add language to section 14.01(b)(1) because the proposed interpolation was unnecessary to achieve clear legislative intent. [9]
Lunsford v. City of Bryan, 156 Tex. 520, 297 S.W.2d 115	The court cited it as additional authority concerning statutory interpolation.	It supported the court’s analysis of whether language should be read into the statute. [9]
State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550	The court cited it through Lunsford regarding statutory interpolation.	It was part of the authorities supporting the interpolation principle. [9]
Miers v. Brouse, 153 Tex. 511, 271 S.W.2d 419	The court cited it regarding statutory interpolation.	It was included among the authorities supporting the court’s statutory-construction analysis. [9]
Connors v. Connors, 796 S.W.2d 233	Section 14.01(b)(1) applies when a nonparent seeks custody instead of a natural parent.	The court relied on it to support limiting the heightened standard to cases in which a nonparent seeks to displace a parent. [8]
In re W.G.W., 812 S.W.2d 409	The party seeking to bar a natural parent from appointment must prove significant impairment to the child’s health or emotional development.	The court cited it as consistent with applying the heightened standard when a nonparent seeks to exclude the natural parent. [8]
Ellis County State Bank v. Keever, 37 Tex. Sup. Ct. J. 783	The court cited it in connection with Jerry’s argument concerning the detail required in evidentiary support for the judgment.	The court rejected Jerry’s related arguments. [5]

Court's Reasoning and Analysis

Section 14.01(b)(1) establishes a heightened requirement before a nonparent may receive custody in place of a natural parent: appointment of the parent must be shown to significantly impair the child’s physical health or emotional development. [10][11]

The court interpreted the statute as addressing situations in which neither parent is awarded custody. Although the statutory language was somewhat ambiguous, applying Jerry’s interpretation would require inserting additional language that the statute does not contain. [3][9]

The court examined the 1987 amendment and concluded that it was intended to authorize appointment of both parents as joint managing conservators, not to make it more difficult for a parent to share conservatorship with a nonparent. [12]

Prior authority and commentary supported limiting the significant-impairment standard to “parent v. non-parent” cases in which the nonparent seeks to prevent the natural parent from receiving custody. [8][13][14]

Section 14.021 further supported applying the best-interest standard when a parent and nonparent share joint custody. That provision applies the chapter’s procedural and substantive standards to a nonparent joint managing conservator, and its subsections concerning parental joint conservatorship, read together, provide for a best-interest test in this circumstance. [4]

Because Bonnie, a parent, retained custody, the statutory preference for parental custody was satisfied. The trial court therefore was not required to apply the more demanding significant-impairment standard. [15]

The court also rejected Jerry’s additional challenges concerning the court of appeals’ evidentiary discussion, the admission of testimony, and the sufficiency of the evidence. [5]

Holding and Implications

AFFIRMED. The Supreme Court of Texas affirmed the court of appeals’ judgment and upheld the appointment of Bonnie Brook and the maternal grandparents as joint managing conservators. [2][15]

The significant-impairment standard applies when a nonparent seeks custody in place of a natural parent; when a parent and nonparent share joint custody, the governing inquiry is the child’s best interest. [8][4] The direct effect was to uphold the existing conservatorship arrangement.

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Jerry P. BROOK, Petitioner, v. Bonnie L. BROOK, Lawrence Behrmann, and Barbara Behrmann, Respondents.

Justice DOGGETT delivered the opinion of the Court, in which all Justices join.

In this child custody dispute we are concerned with the type of finding required for appointment of a parent and a nonparent to be joint managing conservators under section 14.01(b)(1) of the Texas Family Code. The trial court appointed the mother and the maternal grandparents as joint managing conservators. Like the court of appeals, 865 S.W.2d 166, we affirm.

After Jerry Brook filed for divorce in 1989, his wife Bonnie filed a counterclaim seeking appointment as sole managing conservator of their daughter or, alternatively, joint managing conservator with her parents, Lawrence and Barbara Behrmann. The trial court rendered an order pursuant to the jury's decision in favor of the latter joint managing conservatorship and determination that such appointment was in the best interest of the child.

When a child's parents each seek sole custody or together seek joint managing conservatorship, the trial court is to award custody based on the best interest of the child. TEX.FAM.CODE ANN. Sec. 14.021(c), (e); see also, e.g., Gay v. Gay, 737 S.W.2d 94, 95 (Tex.App. — El Paso 1987, writ denied).

A nonparent may be named sole managing conservator, and joint custody is permitted between two nonparents or between a parent and nonparent. TEX.FAM.CODE ANN. Sec. 14.01(a) and 14.021(b). Before a nonparent may be appointed as sole managing conservator or two nonparents as joint managing conservators, however, a higher standard must be satisfied, requiring proof that appointment of the parent or parents would significantly impair the child's health or development. TEX.FAM.CODE ANN. Sec. 14.01(b). Specifically, Section 14.01(b)(1) provides:

A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless:

1) the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development.

TEX.FAM.CODE ANN. Sec. 14.01(b)(1) (Vernon Supp. 1994). This provision codifies the longstanding presumption that "the best interest of a child is served by awarding custody to a natural parent." Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990).

Jerry argues that because joint custody between a parent and nonparent is not the appointment of a parent as "sole managing conservator or both parents . . . as joint managing conservators," Sec. 14.01(b), it can only be awarded if the requirements of section 14.01(b)(1) are met. While acknowledging that the Code is somewhat ambiguous as to the standard to be applied before joint custody between a parent and nonparent is ordered, we believe that section 14.01(b), by requiring proof of serious harm that would be caused by the "appointment of parent or parents," contemplates a situation in which neither of the parents are awarded custody.

Jerry reads a significance into this language that was not intended by the Legislature. Section 14.01(b) previously read:

A parent shall be appointed managing conservator of the child unless . . . appointment of the parent would not be in the best interest of the child. . . .

TEX.FAM.CODE ANN. Sec. 14.01(b) (Vernon 1986), amended by Act of June 20, 1987, 70th Leg., R.S., ch. 744, Sec. 4(b), 1987 Tex.Gen.Laws 2666, 2667. Jerry's appeal is based on a modification of this section in 1987, the same year that section 14.021, providing for the appointment of joint managing conservators, was added to the Code. Yet section 14.01(b), as amended, simply replaces the reference to a parent as a managing conservator with a reference to parents as sole managing conservators or joint conservators. Sec. 14.01(b) (effective Sept. 1, 1987). Thus, the purpose of the amendment was not to increase the difficulty for a parent to be named joint conservator with a nonparent, but to "specifically authorize a court to appoint both parents as joint managing conservators." Patricia A. Wicoff, Joint Managing Conservatorship, The New Statute, State Bar of Texas Advanced Family Law Course P-22 (1987); Michael D. Matheny, Joint Managing Conservators — Legislative Forced Reasonableness, 52 TEX. B.J. 531, 531 (1989). The appointment of both parents was apparently not a consideration in the present case.

While section 14.01(b)(1) is arguably subject to the interpretation that Jerry places upon it, this would require the interpolation of the following words into the statute:

A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless:

1) the court finds that appointment of [either] parent [as sole managing conservator] or [both] parents [as joint managing conservators] would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development.

When a statute is silent or unclear "[t]he law permits the interpolation of words . . . when necessary to achieve clear intent . . .; but interpolation should not be resorted to when to permit it will defeat overriding intent." Mauzy v. Legislative Redistricting Board, 471 S.W.2d 570 (Tex. 1971) (citations omitted). See also Lunsford v. City of Bryan, 156 Tex. 520, 297 S.W.2d 115 (1957), citing State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550 (1937); Miers v. Brouse, 153 Tex. 511, 271 S.W.2d 419 (1954). Here, the interpolation essential to Jerry's interpretation of the statute is not necessary to achieve any clear legislative intent. Rather, since the overriding purpose of the statute is to require a heightened standard in cases where no parent is to be awarded any type of managing conservatorship, we believe that the initial phrase "a parent" is intended to refer to the opposite of "no parent" and does not serve to grant to each parent a right to be appointed absent a "significant impairment" finding.

In accordance with this view, section 14.01(b)(1) has been held to apply only to those situations in which a nonparent seeks custody in lieu of a natural parent. Connors v. Connors, 796 S.W.2d 233, 239 (Tex.App. — Fort Worth 1990, writ denied); see also Lewelling, 796 S.W.2d at 167; In re W.G.W., 812 S.W.2d 409, 413 (Tex.App. — Houston [1st Dist.] 1991, no writ) ("The party seeking to bar the natural parent from appointment as managing conservator[ ]. . . . must prove that the appointment of the parent . . . would significantly impair the child's health or emotional development."). This was noted by commentators at the time of the amendment:

[Section 14.01(b) as amended] conforms the parental preference to the new categories of sole managing conservator and joint managing conservator. The only reasons a court would not appoint a parent(s) is if the court finds significant impairment of physical health or emotional development. . . . This would apply only in "parent v. non-parent" cases.

Patricia A. Wicoff, Joint Managing Conservatorship, The New Statute, State Bar of Texas Advanced Family Law Course P-22 (1987).

We find further support in Section 14.021 of the Family Code for the proposition that the test for the appointment of a parent and nonparent as joint managing conservators is a best interest of the child test. As indicated above, this section provides for the appointment of a child's parents as joint managing conservators where it is in the best interest of the child. TEX.FAM.CODE ANN. Sec. 14.021(c) and (e). It also provides that "[t]he procedural and substantive standards established by this chapter apply also to a joint managing conservator who is not a parent of the child." Sec. 14.021(j). While it is clear that neither of two nonparents seeking joint custody could take advantage of these subsections in order to escape the heightened standard required for their appointment under Sec. 14.01(b), we conclude that subsections (c), (e) and (j) together do provide for a best interest test where, as here, a nonparent seeks to share joint custody with a parent.

The purpose of the statute, to codify the preference for giving custody to a parent, has been met in the present case. The fact that a nonparent shares custody does not detract from the fact that one of the child's parents does have custody. The trial court did not err in failing to demand satisfaction of any more demanding standard. The court of appeals correctly affirmed the trial court's judgment, and we affirm the judgment of the court of appeals.

We also reject Jerry's arguments that the court of appeals should have detailed evidence in support of the judgment, Ellis County State Bank v. Keever, 37 Tex.Sup.Ct.J. 783, 785-86, (May 11, 1994), that the trial court abused its discretion in permitting the testimony of one witness, and that there was no legally sufficient evidence to support the jury verdict.