Lenz v. Lenz

• Citation: 79 S.W.3d 10
• Decision Date: 06 June 2002
• Docket Number: No. 01-0232.,01-0232.
• Parties: Rosemarie Klara LENZ, Petitioner, v. Heinrich Rudolph LENZ, Respondent.
• Court: Supreme Court of Texas

Page 10

79 S.W.3d 10

Rosemarie Klara LENZ, Petitioner, v. Heinrich Rudolph LENZ, Respondent.

No. 01-0232.

Supreme Court of Texas.

Argued January 9, 2002.

Decided June 6, 2002.

Richard R. Orsinger, San Antonio, for Petitioner.

Hector E. Mendez, San Antonio, for Petitioner.

Jo Chris G. Lopez, Shaddox Compere Walraven & Good, San Antonio, for Respondent.

Christine Tharp, San Antonio, for Respondent.

Justice HANKINSON delivered the opinion of the Court.

Today we decide issues of first impression under the Family Code concerning a primary custodial parent's right to modify a joint managing conservatorship to remove a residency restriction when that parent desires to relocate. Rosemarie (Romy) Lenz sued to modify the joint managing conservatorship she shared with her ex-husband, Rudolph (Rudi) Lenz, in order to relocate to Germany with their two sons. Contrary to a jury's verdict in favor of the modification, the trial court entered an order restricting the boys' residence to Bexar County, Texas, and further ordered each party responsible for its own attorney's fees and costs. The court of appeals affirmed. 40 S.W.3d 111. The precise issues presented for our review are: (1) whether Homy produced legally sufficient evidence to support the jury's verdict; and (2) if she did, whether Texas Family Code § 105.002 permits a trial court to impose a geographic restriction on a child's primary residence contrary to that verdict. We conclude that legally sufficient evidence supports the jury's verdict in favor of the requested modification, and that under Family Code § 105.002, the trial court could not contravene the jury's verdict giving Romy the exclusive right to establish her sons' primary residence by imposing a geographical restriction on their primary residence. For these reasons, we reverse the court of appeals' judgment and render judgment modifying the joint managing conservatorship to give Romy the exclusive right to determine her sons' primary residence. We remand the issue of attorney's fees to the trial court for further proceedings consistent with this opinion.

Romy and Rudi Lenz are German citizens currently residing in San Antonio, Texas. Six years after their marriage in Germany, they had their first son, Oliver, in 1986. The family relocated to Phoenix, Arizona, in 1991 because of Rudi's job. The next year, Dominic was born. In 1997, Romy and Rudi legally separated and entered into a Stipulated Consent Decree of Legal Separation pursuant to Arizona law. The decree included a Joint Custody Agreement and Parenting Plan, under which Romy and Rudy would be joint legal custodians. The agreement designated Romy as the "primary residential parent," and as a result, Oliver and Dominic resided with their mother while Rudi saw the boys on a regular schedule. The agreement also expressed the parties' intent to relocate to San Antonio and restrict the boys' residency to Texas. Rudi moved to San Antonio in February 1997 to start a new job, and Romy and the boys followed in June of that year.

In January 1998, Romy initiated divorce proceedings in Bexar County, and eight months later, Romy and Rudi divorced. The divorce decree incorporated the Arizona Joint Custody Agreement and Parenting Plan. Thus, the children continued to live with their mother, their father saw them on the prearranged schedule, and Romy had the right to determine the boys' residence in Texas.

Shortly after the divorce, Romy filed this proceeding seeking to modify the divorce decree in order to remove the Texas residency restriction. She sought modification so she could return to Germany with the children and remarry. Rudi argued against Romy's modification and alternatively sought modification to become the boys' primary custodial joint managing conservator. Both parties sought attorney's fees and costs.

The modification issues were tried to a jury, while the trial court decided attorney's fees and costs. The court charged the jury with two questions: (1) whether the statutory requirements for modification had been proven; and (2) if so, which parent should have the exclusive right to determine the county of residence and primary residence of the children. The jury answered the first question affirmatively, and based on that answer, determined in response to the second question that Romy should have the exclusive right to determine the children's residence.

Rudi consequently filed a motion for judgment notwithstanding the verdict in which he asked the court to disregard the jury's verdict because, among other things, Romy had failed to produce sufficient evidence to meet any of the statutory requirements for modification under Texas Family Code § 156.202. See TEX. FAM.CODE § 156.202.¹ Rudi also argued that the jury's finding giving Romy the exclusive right to determine the children's primary residence was advisory under Family Code § 105.002(c)(2)(B) because it concerned "a specific term or condition of possession of or access to the child," an issue on which a party is not entitled to a jury finding under the statute. See id. § 105.002(c)(2)(B). In the alternative, Rudi asked the court to enter orders in the best interest of the children and specify a fixed geographical area in which the children could reside.

Although the jury found in favor of modification and gave Romy the exclusive right to determine the children's primary residence, in its final order the trial court allowed Romy to establish the children's primary residence, but only within Bexar County. The trial court also ordered each party to pay its own attorney's fees and costs. The court of appeals affirmed, concluding that no evidence showed that the boys' relocation would be a positive improvement and in their best interest, and that Family Code § 153.134 authorized the trial court to impose the additional residency restriction. 40 S.W.3d at 116-18.

Romy presents two issues for our review: (1) whether legally sufficient evidence supports the jury's finding that her children's relocation to Germany would be a positive improvement for them and in their best interest, thereby justifying modification of the joint managing conservatorship, see TEX. FAM.CODE § 156.202(2); and (2) whether the trial court had the authority to impose an additional residency restriction contrary to the jury's verdict, see id. § 105.002.

As a preliminary matter, Romy asserts that Rudi did not preserve his legal-sufficiency challenge to the modification finding because the record failed to reflect the trial court's ruling on his motion for judgment notwithstanding the verdict. Rudi, however, argues that Romy had the burden to preserve error, because as the appealing party she should have secured a ruling on the motion and had that ruling reflected in the record. We conclude that Rudi has preserved error.

Rudi's motion asked the court to disregard the jury's finding on modification, or in the alternative, to render an order specifying a fixed geographical area for the children's residence. The trial court's final order declared:

Pursuant to the jury's verdict, IT IS ORDERED ... Article V of the Joint Custody Agreement and Parenting Plan entitled "Relocation" ... is hereby specifically modified to read as follows: ... as a condition of possession to the joint managing conservatorship, that the children shall reside in and attend school in Bexar County, Texas.

Thus, although the trial court ordered modification "pursuant to the jury's verdict," it imposed its own primary residence restriction. By doing this, the trial court rejected the jury's verdict giving Homy the exclusive right to decide her sons' primary residence and granted the alternative remedy Rudi sought in his motion, which was to restrict the children's primary residence to Bexar County. In this way, the trial court implicitly disposed of the motion for judgment notwithstanding the verdict. See TEX.R.APP. P. 33.1(a)(2)(A) (stating record must show that trial court "ruled on the request, objection, or motion, either expressly or implicitly").

As Rudi did not waive his no-evidence challenge, we turn to Romy's claim that the court of appeals erred in sustaining that challenge. When reviewing a noevidence point, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). Here, we must decide whether Romy presented more than a scintilla of evidence to support modifying the joint managing conservatorship to remove the residency restriction so that she could relocate with her children.

Family Code § 156.202 specifies that a court may modify the terms and conditions of a joint managing conservatorship when two requirements are met. First, either the circumstances of the child or one or both of the conservators must have materially and substantially changed since the rendition of the order, or the order must have become unworkable or inappropriate under existing circumstances. TEX. FAM.CODE § 156.202(1). Second, the modification must be a positive improvement for and in the best interest of the child. Id. § 156.202(2). The parties do not dispute that Romy's circumstances have materially and substantially changed since the divorce and that the order has become unworkable under the parties' present circumstances. See id. § 156.202(1). The parties also acknowledge Romy's wish to move to Germany and remarry. At issue is the second part of the test for modification — whether relocation will be a positive improvement for and in the best interest of Oliver and Dominic. See id. § 156.202(2).

The Legislature has made clear that "[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." TEX. FAM.CODE § 153.002. Yet, the Family Code does not elaborate on the specific requirements for...