Texas Appeals Court Affirms Divorce on Grounds of Adultery

The court in a Texas divorce case may grant a divorce in favor of one party if it finds the other party committed adultery.  There must be “clear and positive” evidence of adultery.  Adultery may occur after separation. In a recent case, a husband challenged the divorce on the grounds of adultery.

The wife petitioned for divorce on the grounds of insupportability and adultery, and cruelty.  She requested a disproportionate share of the community estate.  The trial court found the husband committed adultery.  It named the parents joint managing conservators, with the wife having the exclusive right to designate primary residence.  The possession order granted the husband access to the children on the first, third, and fifth weekends, but only from 10 a.m. on Saturday to 6 p.m. on Sunday.

The trial court denied the husband’s motion to reconsider, modify, correct, or reform its judgment and entered a final decree.  The husband appealed, arguing the trial court abused its discretion in granting the divorce based on a finding of adultery and that the court abused its discretion in “materially deviating” from the Standard Possession Order.

The husband argued the evidence was insufficient to support a finding of adultery.  He argued the wife’s testimony she had learned of affairs from colleagues was hearsay and should not have been admitted.  There were no witnesses to prove the adultery.  He requested the at-fault finding be removed and the case be remanded to the trial court to reconsider the property division.

The wife argued her testimony that the husband’s girlfriends contacted her, and that text messages, pictures, and evidence obtained from a private investigator all supported the finding.  She also claimed the children had been exposed to the husband’s girlfriends since the separation.

The husband denied having an affair with a specific woman, but did not deny the wife’s allegation she had put up with adultery for years.  The wife submitted evidence of text messages where she confronted him about the alleged affairs and “years of infidelity,” and he did not deny the infidelity at that time either.

Under Texas law, evidence of a party remaining silent where a denial or rebuttal would otherwise be expected can constitute an admission.  The appeals court found the husband’s failure to deny constituted an admission.  Furthermore, the wife testified the husband’s girlfriends had contacted her, which also constituted evidence of adultery.  The appeals court found there was sufficient evidence to support the court’s finding of adultery.  The trial court was the trier of fact and could have reasonably resolved any conflicting evidence in favor of the wife.  There was therefore no abuse of discretion in the adultery finding or granting the divorce on the grounds of adultery.

The husband also argued the trial court abused its discretion in its deviation from the standard possession order.

Under the Texas Family Code, if the possessory conservator lives within 100 miles of the child’s primary resident, he or she has the right to the child on the first, third, and fifth weekends of each month, from 6 p.m. on Friday and ending through 6 p.m. on Sunday.  He or she also has access on Thursdays from 6 p.m. to 8. p.m., unless the court finds it is not in the child’s best interest.  Any alterations must be in the child’s best interest.  Tex. Fam. Code  Ann. § 153.312.  The best interest of the child is the primary consideration in issues involving access.  Case law has established a list of non-exhaustive factors that courts should consider.

The husband had standard possession as described above under the first temporary order, but the court modified the temporary order to allow him access every weekend from Saturday at 10 a.m. to 6 p.m. on Sunday.

The wife testified she wanted the standard possession order, not the visitation schedule in the temporary order.  She testified going back and forth was exhausting for the children and interfered with their activities and time with their friends.  She also testified the temporary schedule prevented her from having any weekends with the children.  She testified the husband was aggressive with the children sometimes with regard to discipline.  She testified CPS investigated him for masturbating in their presence.  She testified the husband had cursed and berated one of the children.  She said he had kicked one of the kids and spanked one of the kids.  She also testified the children were angry, combative, and frustrated when they returned from seeing their father.

The husband asked for full custody at the hearing before the trial court.  He testified he was the primary financial provider.  He denied physically disciplining the children. He thought it was in the children’s best interest for him to have primary custody.

The appeals court found the evidence supported the trial court’s custody and visitation decision.  The trial court was in the best position to determine the children’s desires regarding primary custody.  The appeals court pointed out the trial court, after speaking with the children, reduced the weekend visitation from three nights to one and prohibited the husband from sleeping in the bedroom with the children.  The wife’s testimony also supported the trial court’s decision.  Her testimony that the children were stressed on Friday afternoon supported a determination it was in their best interest for visitation to begin on Saturday morning.  The appeals court also noted the husband’s changing work schedule could reasonably be expected to affect the stability of the children’s environment.  The appeals court found the evidence supported the deviation from the standard possession order based on the children’s best interests.

The appeals court affirmed the trial court’s judgment.

If you are considering divorce after your spouse committed adultery, an experienced Texas divorce attorney can help you through the process and fight to get the best possible outcome with regard to both the property and the children.  Call McClure Law Group at 214.692.8200 to set up a meeting to discuss your case.


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