Houston Bar Association - Family Law Section

Gray's Interesting Cases - November 2001

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  1. In the Interest of S.G.S., 53 S.W. 3d 848 (Tex. App, Ft. Worth, 2001, no writ history). H & W divorced in '96 in T County with H & W being JMC's of 2 kids. In Jan. '99 W moved to C. County. In March 2000, W filed suit to modify visitation in T County acknowledging that she and kids lived in C. County. 3 days later H filed an agreed order between him and W whereby W waived any claim to H's retirement in consideration for his dismissal of his pending appeal of the property division between him and W. In May 2000, H filed an answer to W's modification motion coupled with a motion to transfer to C County since W & kids had lived there for the last 15 months. Upon trial before the A.J., the A.J. granted W's modification and denied H's transfer motion. H did not appeal to the T/C so a final order was signed in August 2000, from which H appealed. CA reversed ruling:
    1. H's filing of the agreed order after W had filed her modification suit was not an "initial pleading" per §155.204 as the order related to the parties' property division not the SAPCR action. Thus H's May 2000, filing was his "initial pleading" and his transfer motion was timely filed.
    2. H's failure to appeal the A.J.'s denial of his transfer motion did not waive his right to appeal the T/C's final order denying transfer because §201.016 specifically says no waiver.
    Comment - A correct ruling but I have a question for you. In a divorce, H is awarded custody of the kid but the kid's domicile is restricted to X County and H is enjoined from establishing the kid's residence/domicile in any other county without the T/C's permission. H ignores the T/C orders and moves to Y County without telling W. W: (a) doesn't learn where H and the kid are until 12 months later; or (b) W learns of the move shortly thereafter but doesn't do anything about it. 12 months after the move W files a motion to modify custody and a contempt motion for H's violation of the T/C's domicile/residence restriction order. H timely responses with a general denial and a motion to transfer everything to Y County where he and the kid have lived for the last 12 months. What's your ruling on H's transfer motion?