1. Lenz v. Lenz, 45 Tex. Sup. Ct. J. 34. H & W separated in Ariz. in '97 and obtained a "legal" separation whereby H & W were the JMC's of their 2 kids with W having the right to designate the kids' primary residence. The order contemplated that H & W would move to Texas so W's right to designate residence was limited to Texas. The parties moved to San Antonio. In '98 W filed for divorce which was granted and the Ariz. custody order was made a part of the Tex. decree. Later W filed a motion to delete the "Texas only" restriction so she and the kids could return to Germany. In trial a jury found that (1) W had proved the elements to justify a modification of the residency restriction and (2) W should have the exclusive, unrestricted, right to determine the kids residence, i.e., she and the kids could move to Germany if W wanted. Contrary to the jury's finding, the T/C allowed W to pick the kids' residence but restricted it to Bexar County where H& W lived. W appealed.
The CA affirmed.
The Supremes reversed recognizing that this was the time to address the parent relocation issue. The Supremes examined the laws of other states and ultimately concluded that they could not set a bright line to determine when a residency restriction should be modified. Each case is fact specific and the moving party has to convince the fact finder that the requested modification is in the child's best interest and there has been a material and substantial change since the last order (§156.101). W carried that burden in this case; however, the T/C restricted her designation powers to Bexar County under the theory that under §153.134 or §105.002(c)(2)(B) the T/C, in a JMC, has the exclusive power to make a residence limitation, i.e. a jury's verdict on this point in merely advisory. The Supremes said no. A jury's decision on whether a residence restriction should be removed or imposed is binding on the T/C and the jury's decision cannot be contravened by a T/C.
Comment - Relocation is a hot topic now and this decision doesn't clarify the burden of proof problems but it does firmly establish that a jury verdict is binding irrespective of what the T/C thinks.
2. Bates v. Tesar, No. 08-01-00026-CV, not yet published (CA, El Paso). H & W divorced in '96 in Dallas
with W being the sole M/C of the 2 kids and H being the P/C with standard visitation. W remarried in June '98 and H in '99. In May '99 W & H2 lost their jobs but shortly thereafter H2 obtained a much higher paying job in Port Lavaca. W and H2, along with the 2 kids, moved from the Dallas area to Port Lavaca altho she didn=t give H timely notice of the move. H then filed a modification suit requesting that H & W be designated JMCs of the kids with a restriction that the kids domicile be in Dallas County only. H's sole ground for claiming a material and substantial change of circumstances was W's move to Port Lavaca. In a non-jury trial, the T/C granted the modification, made H & W JMC's of the kids, and ordered W to return the kids to Dallas and establish their primary residence in Dallas County. W appeals. In a 49 page opinion written by a well known and long winded Justice, the El Paso CA affirmed holding that:
- Altho the T/C erroneously ruled that the F/C has the presumption that the kids' parents should be JMCs (this presumption only applies in the initial SAPCR action, not in modification actions between the parents), this error doesn't require reversal when the facts support the ultimate ruling on a correct legal theory (satisfaction of the custody modification elements).
- The relocation of a custodial parent doesn't, as a matter of law, establish a substantial and material change of circumstances but a move of a significant distance may justify a fact finding of such a change of circumstances.
- Restricting a child's primary residence (or domicile) to a specific county (or other geographical area) does not violate the custodial parent's const. rights under the 14th amend.
Comment - As usual another well written opinion by Justice McClure (a/k/a Ann Crawford if you've been around awhile) which gives us some substantive law in these relocation cases which are so fact specific. The appellant always faces the difficult task of reversing on an abuse of discretion standard.
3. Innovative but, alas, unconstitutional. Langston v. Langston, No. 11-01-00205-CV, not yet published (CA, Eastland). At time of marriage, H owned his home subject to a mortgage. After marriage, H & W obtained a home equity loan (secured by a mortg. on H's home) which was used to pay off the original home mortg. Later W filed for divorce and H defaulted. W testified that she & H were 4 mos. in arrears on the house note; the taxes weren't paid; the insurance had lapsed; the appraised value of the home was $68,000; the foreclosure value was $38,000 and the unpaid balance of the community mortgage was $55,000. The T/C awarded W the home along with the debt recognizing that the house was H's separate prop. but it was subject to a community claim for economic contribution (e.c.). H appeals.
Reversed. §3.401 et seq. does not authorize the divestiture of a spouse's separate prop. even if the e.c. claim exceeds the value of the separate prop. All a court can do is award the separate prop. to the spouse owning same and make that prop. subject to an e.c. lien subject to foreclosure.
Comment - An absolutely correct statement of the law. What I wonder about is why did H appeal? Even if the house was worth $68,000, the maximum equity was $13,000 less the unpaid taxes, less the unpaid accrued monthly mortg. payments, less the mortg. company atty. fees, less the appellate atty. fees incurred by H which reduces the equity to probably less than zero. Now we go back to the T/C which was embarrassingly reversed and redo everything with the additional trial atty. fees. Ain't love grand. An unanswered question is: When you have an e.c. lien is the T/C limited to imposing a judicial lien against the separate property which can be foreclosed only by a subsequent suit or may the T/C order the separate property owner to sign and deliver a deed of trust to evidence the e.c. lien which can be foreclosed by non-judicial means?
