Bates v. Tesar
| Decision Date | 06 June 2002 |
| Docket Number | No. 08-01-00026-CV.,08-01-00026-CV. |
| Citation | 81 S.W.3d 411 |
| Parties | Shannon M. BATES, Appellant, v. Richard C. TESAR, II, Appellee. |
| Court | Texas Court of Appeals |
Lisa Gayle Garza, Brad M. Lamorgese, Dallas, for Appellant.
Jimmy Lynn Verner, Verner & Brumley, Dallas, for Appellee.
In this modification suit, we are called upon to determine whether relocation in and of itself constitutes a material and substantial change in circumstances as well as to consider the constitutional and statutory parameters of domicile restriction. Because Appellant also challenges the legal and factual sufficiency of the evidence to support the trial court's judgment, we provide a detailed factual recitation.
Shannon M. Bates and Richard C. Tesar, II were divorced July 12, 1996, in Dallas County. Pursuant to the decree of divorce, Shannon was appointed sole managing conservator and Richard was appointed possessory conservator of their two children, Ashley and Matthew. As sole managing conservator, Shannon had the exclusive right to establish the primary residence of the children without regard to geographic limitation. The decree included a standard possession order incorporating provisions in the event the parents lived within 100 miles of each and provisions for long-distance access.
Shannon married James Bates in November 1998. On May 8, 1999, she mentioned to Richard that there was a possibility she might be moving to Port Lavaca.1 On May 21, she notified Richard that she and the children would indeed be moving to Port Lavaca, probably sometime in July. She did not offer a specific date. By letter dated June 8, she provided "our new address" and "our new phone number" and mentioned that she had already enrolled the children in school. Shannon and Richard talked again on June 9 and during this conversation, Shannon announced a moving date of June 22. On Friday, June 11, Shannon advised that she would be moving on Monday, June 14, because James would be starting work in Port Lavaca that day. That same Friday, Richard obtained a temporary restraining order preventing Shannon from "changing the residence or current abode of the children." Shannon was served on June 14 when she met Richard and the children at the dentist's office following his weekend possession. She admittedly had her van loaded with items for the move, although she described them as "a few final things, but the truck was already in Port Lavaca."
According to Shannon, the "move" occurred on June 9 and Matthew was in Port Lavaca with her, although Ashley was at church camp. She brought Matthew back to Dallas on June 11 for Richard's weekend. Thus, in her view, the temporary restraining order had no effect because she had already moved the children from Dallas to Port Lavaca and the order merely restrained her from changing their current residence. Richard testified that during one of the June conversations, he had asked Shannon if she thought moving the children to Port Lavaca was in their best interests. "[A]nd she said no, but that she thought that that was what was best for them at the time, for her and James."
Richard filed suit in June 1999, seeking joint managing conservatorship and a domicile restriction to prohibit Shannon from moving the residence of the children from Dallas County or its adjacent counties. At a temporary orders hearing on August 27, 1999, the associate judge entered a temporary injunction pending a final trial of the matter and ordered the children returned to Dallas County and enrolled in school by October 4, 1999. Shannon appealed the ruling to the trial court, which rescinded the associate judge's requirement that the children be moved back to Dallas pending trial.
Richard testified that prior to the move to Port Lavaca, he was involved in the children's school events and programs, Matthew's T-ball and soccer games, and a majority of Ashley's gymnastics meets.2 He coached one of Matthew's soccer teams, refereed during another soccer season, and helped coach his second T-ball season. He was the vice president of Ashley's school booster club. He helped the children with their homework and took them to the library. Since the move, the children have had to miss school, are often tired during class, and spend many hours traveling between Port Lavaca and Dallas on flights, many of which they make without parental supervision. On occasion, the children fly out of Corpus Christi, which is 105 miles from Port Lavaca, or about a two hour drive. On other occasions they have departed from Houston or San Antonio. Houston is 140 miles from Port Lavaca and a two to two and a half hour drive. San Antonio is 170 miles away and roughly a three hour drive. When the children come for a weekend, they leave around noon and normally miss some school on Friday afternoon. Richard testified that the flights routinely run late, particularly when the children fly from Houston. Richard contends that it has been difficult for him to maintain a long-distance relationship with his children. Although most of Ashley's gymnastics meets had been in the Metroplex area while the children lived in Dallas, following the move to Port Lavaca, the majority of the meets were in the San Antonio area, with one in Houston. Between January and April 2000, there had been five gymnastics meets and Richard had attended four of them — one in Hurst, one in Austin, and two in San Antonio.
Prior to the move, Shannon and the children were living in Garland; the children were enrolled in private school in Carrollton and Ashley's gym was in Rowlett. Both children attended private school in Port Lavaca, although Ashley had expressed interest in attending public school. Ashley had two other students in her class;3 Matthew had four in his. Ashley's gym was in Victoria, which is thirty miles from Port Lavaca. Her training sessions were after school five days a week. Richard acknowledged that Ashley had verbalized a desire to remain in Port Lavaca; Matt had not specifically said that he wanted to stay in Port Lavaca, but he liked it because of the beach. Richard did not believe that the move was in the children's best interest and thought their opinions had been "fed" to them to some extent.
Shannon described the events leading up to her decision to relocate. She had never before lived in Port Lavaca. The move was purely voluntary but predicated on financial reasons. It became too difficult to keep up with the cost of living.
It was putting a lot of stress — or it had been for years — to stay here in this area and have to go from one place to another to get everybody back and forth to all their activities, to hold a job and still get them to their activities without interfering and causing, you know, reason to be fired because you were taking off all the time.
Prior to the move, James was employed as a janitor at Covenant Church earning $30,000 a year. Shannon was also employed by the church as an administrative assistant to the pastor at an annual salary of $20,000. Both were laid off in May 1999. Shannon had received her GED but had no college credits; consequently she found it difficult to find employment in Dallas that would pay her more than minimum wage. At one point she testified that as far as she knew, it was also difficult for James to find employment; at another point she acknowledged that James had made no real effort in May or June of 1999 to find work in the Dallas area. She admitted that between December 1998 and March 1999, she and James had been looking for land in order to build a house. The financial issues were more important to her than Richard's relationship with the children if it sustained a "good home life for the children." At the time of trial, Shannon was pregnant and voluntarily unemployed because of the health of her two-year old. She had no intention of going back to work. The financial stresses had lifted and there was not as much of a financial burden. James expected to earn between $50,000 and $65,000 for the year 2000. The children were no longer in day care and they had time to play after school because the commuting time and distance were reduced. Ashley got home from the gym earlier and had less homework. They had more time together as a family.
Shannon characterized Richard as a non-involved parent who never really had a relationship with the children until he became upset with her over the move. In her view, he was controlling and inflexible. She discounted his involvement with Matthew's sporting activities.4 She believed Richard had difficulty handling both children at the same time. Richard admitted to not exercising his Wednesday night possession while the children were in Dallas and that he was not able to attend all of the team practices even when he coached because he was at work. Although pursuant to the terms of the divorce decree, Richard was to have summer possession of the children for thirty days, he did not exercise his summer access in 1997 and 1998:
During those two summers, I thought at the time it was in the best interest of the kids to maintain a normal schedule. Because Ashley had gymnastics during the middle of the week four days a week, I did not feel I'd be able to — to get her to — I thought that she would miss out on quite a bit of that, because if she had been — or the kids had been in my custody for the 30 straight days, I would have had to have put them in day care, and getting them back and forth would be difficult.
Shannon explained that when she did not hear from Richard in 1999 as to what his summer plans were, she called him. He told her that it was not convenient for him to have the...
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