Jacobsen v. Jacobsen, 13-85-107-CV

• Decision Date: 02 May 1985
• Docket Number: No. 13-85-107-CV,13-85-107-CV
• Citation: 695 S.W.2d 44
• Parties: Ada P.C. JACOBSEN, Appellant, v. Jacob H. JACOBSEN, Appellee.
• Court: Texas Court of Appeals

Page 44

695 S.W.2d 44

Ada P.C. JACOBSEN, Appellant, v. Jacob H. JACOBSEN, Appellee.

No. 13-85-107-CV.

Court of Appeals of Texas Corpus Christi.

May 2, 1985.

Pamela E. George, Houston, for appellant.

Scott T. Cook, William A. Dudley, Corpus Christi, for appellee.

Before NYE, C.J., and SEERDEN, and BENAVIDES, JJ.

OPINION

SEERDEN, Justice.

This is an appeal from an interlocutory order granting a temporary injunction entered in a suit to modify a divorce decree. The decree sought to be modified is dated April 4, 1983. Such decree named Ada P.C. Jacobsen, appellant (former wife and mother), managing conservator of the two children of the parties and named Jacob H. Jacobsen, the movant in the trial court and appellee in this appeal, as possessory conservator.

A recitation of the facts leading to the granting of the order appealed from is necessary for a proper disposition of this case.

The parties are Canadian citizens who were married in July, 1972. Both children of the marriage were born in Canada, one on February 13, 1974, and the other on April 8, 1975. In 1981, appellee (father and ex-husband) moved to Corpus Christi, Nueces County, Texas. He has lived in Corpus Christi continually since that time. On January 3, 1983, he filed an action for divorce. His wife made a general appearance. No one has questioned the jurisdiction of the 94th District Court of Nueces County over either the subject matter or the parties in this matter. At the time of the divorce, appellant was still living in Canada and, in fact, has resided in Canada at all times material to this case. The children had been living with their father, appellee, since July, 1982. At the time the divorce decree was entered, April 4, 1983, appellant was named managing conservator and appellee was named possessory conservator of the children. Not withstanding, the two girls continued to live with their father, who ultimately remarried. They entered school and completed the 82-83 school years in Corpus Christi. During the time the children began living with their father until July, 1984, (when the present controversy began) appellant came to Corpus Christi to see the children on three occasions. Each of these visits lasted from five to seven days. The mother (appellant) did not have the physical possession of her children during these years, except during her visits to Corpus Christi. The father (appellee) fully supported the children; appellant made no financial contribution to their support, education or welfare.

In July, 1984, at appellant's request, the children were sent for a visit with appellant's relatives in New Jersey. While the nature and purpose of the visit is disputed, the facts show that appellee purchased round-trip tickets for the children to return to Corpus Christi; however, appellant cancelled the return flight to Corpus and used the money to fly the children to her home in Canada. The children remained with appellant until late October, 1984, approximately three months, when appellee went to Canada, obtained their possession under the pretense of a weekend visit and brought them back to Corpus Christi. The present motion to modify was filed by appellee prior to his going to Canada and getting the children, but was not served on appellant until the children were moved to the United States.

Other proceedings involving this matter were a hearing on temporary orders and habeas corpus proceeding in the trial court and a mandamus action in this Court. See Jacobsen v. Haas, 688 S.W.2d 634 (Tex.App.--Corpus Christi, 1985, no writ), for details of these proceedings. On January 30, 1985, the trial court granted appellant's application for writ of habeas corpus and immediately began a hearing on appellee's motion for additional temporary orders which he had filed on January 25, 1985. On February 1, 1985, the trial court granted the request for additional temporary orders. These orders form the basis of this appeal.

In her first three points of error, appellant contends it was error and a clear abuse of discretion for the trial court to temporarily enjoin her from removing the children from Nueces County or from the London Elementary School, in which they are enrolled, or in acting in concert with others to remove the children from Nueces County, until the end of the 1985 school year.

At the outset, we note a trial court has broad discretion in determining whether or not to grant a temporary injunction. Transport Company of Texas v. Robertson Transports, Inc., 261 S.W.2d 549, 552 (Tex.1953); Ogden v. Coleman, 660 S.W.2d 578, 582 (Tex.App.--Corpus Christi 1983, no writ). In addition, trial courts are vested with wide discretion in proceedings involving custody and control of children. Dunker v. Dunker, 659 S.W.2d 106, 108 (Tex.App.--Houston [14th Dist.] 1983, no writ); Hamann v. Morentin, 660 S.W.2d 645, 646 (Tex.App.--Fort Worth 1983, no writ). We must also always keep in mind the age old admonition presently embodied in TEX.FAM.CODE ANN., Section 14.07(a) (Vernon 1975): "[t]he best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child."

A review of the transcript and statement of facts in this case causes us to conclude that the trial judge would have been justified in believing that, at least since July, 1984, both appellant and appellee, who appear in other respects to be loving and dedicated parents, have been engaging in the type of "gamemanship" in which separated or divorced parents often become embroiled to satisfy their own selfish or egotistic purpose at the expense of innocent children who become pawns in a legalistic battle for control of their lives. This is poignantly pointed out in the heartrending letter from one of the little girls in this case. In part, she writes:

[n]ever forget whoever I live with I'll love you guys (the parents) equally and I'll miss whoever I don't get to live with and I'll never forget my Mom and Dad. You guys are important to me. Nothing else makes me happier to see you guys. Nothing else is more important to me than you guys. Nothing else would make me happier to see you guys get together and work things so its fair....

We have no hesitancy to hold that the trial court had the discretion in this case to order these children to remain in the environment in which the mother (appellant), the managing conservator, had seen fit to place them for the major part of the time since the divorce; to keep them in the place and school they were attending at the time of these proceedings, and to maintain the status quo until the end of the school year.

TEX.FAM.CODE ANN., Section 11.11 (Vernon Supp.1985) specifically authorizes the granting of temporary orders for the safety and welfare of the children. The trial court's orders in this instance affirmatively state that the orders are for the safety and welfare of the children and are in their best interest.

The only statutory limitation on the trial court's discretion...