Lenz v. Lenz
| Decision Date | 31 August 2000 |
| Docket Number | No. 04-99-00492-CV,04-99-00492-CV |
| Parties | (Tex.App.-San Antonio 2000) Rosemarie LENZ, Appellant v. Rudi LENZ, Appellee |
| Court | Texas Court of Appeals |
Sitting: Alma L. Lopez, Justice Catherine Stone, Justice Paul W. Green, Justice.
This is a post-divorce "relocation case" in which Rosemarie ("Romy") Lenz sought modification of her divorce decree so that she may move with her two minor children to Germany. Her ex-husband, Rudi Lenz, sought to restrict the children's residence to Bexar County, Texas. Romy obtained a favorable jury verdict, but the trial court entered judgment notwithstanding the verdict and imposed a Bexar County residency restriction. Romy now appeals from the order modifying the terms of the conservatorship order.
Romy and Rudi, German citizens, married in Germany in 1980. In 1991, they moved to Phoenix, Arizona with their then four-year son, Oliver. Dominic, their second son, was born the following year. In 1997, the parties legally separated under Arizona law and entered into a Stipulated Consent Decree of Legal Separation. Among other provisions, this decree included a Joint Custody Agreement and Parenting Plan addressing custody and support for Oliver and Dominic. In general, the agreement provided that Romy and Rudi would be joint legal custodians, with Romy being the "primary residential parent" (equivalent to primary custodial parent in Texas) and with whom the children would reside subject to Rudi having physical access to them. The parties' regular visitation schedule provided that Rudi had custody of the children every other weekend and two nights per week. This agreement also acknowledged the parties' intent to both relocate to San Antonio and restrict residency of the children to Texas. With respect to the residency restriction, the agreement provided that:
Neither parent shall permanently remove the Children from the State of Texas, without written consent of the other parent and/or a court order and without first attempting to rework the Parenting Plan through the use of a private mediator mutually agreed upon by the parties.
As planned, the parties moved to San Antonio in 1997. In 1998, Romy initiated divorce proceedings and the parties divorced in August of that year. The divorce decree, signed and entered on August 14, 1998, incorporated by reference the Arizona Joint Custody Agreement and Parenting Plan. Thus, per the decree, Romy had the exclusive right to determine the children's residency, although that right was not unfettered. She was required to live with the children in Texas where Rudi could have physical access to them.
The following month, Romy filed a motion to modify in which she sought removal of the Texas residency restriction from the conservatorship order. This action was based upon Romy's desire to return with the children to Germany where she intends to remarry. In response, Rudi argued against modification, and alternatively, he sought to be named the primary residential joint managing conservator.
The modification issue was tried to a jury. The issue of attorney's fees and court costs was submitted to the trial court. At the trial's conclusion, the jury was charged with two questions: (1) whether the requirements for a modification had been proven; and (2) if so, which parent should have the exclusive right to determine the county of residence and the primary residence of the children. Finding evidence to support a modification, the jury answered the first question affirmatively. In response to question two, which was conditioned upon question one, the jury determined that Romy should have the exclusive, unfettered right to determine the children's residency.
Thereafter, Rudi filed a motion for judgment n.o.v. in which he asked the court to disregard the jury's verdict because, among other things, Romy had failed to "meet any of the statutory requirements [for modification under section 156 of the Family Code.]" Alternatively, Rudi argued that the jury's answer to question two was only advisory under section 105.002 (c)(2)(B) of the Family Code,1 and thus the trial court could properly disregard it. Rudi also asked the court to issue further orders regarding the geographical restrictions in the original divorce decree. In support of his post-verdict request, Rudi claimed that the trial court had the
The trial court entered a final order, which did not modify the original conservatorship order by deleting the Texas residency restriction - the express relief Romy sought and the relief to which the jury believed she was entitled. Rather, the trial court's order modified the conservatorship order to the extent it imposed yet a further limitation on Romy's exclusive right to determine the children's residency. Specifically, the trial court modified the original order to read as follows:
IT IS ORDERED that ROSEMARIE LENZ and RUDI LENZ shall continue as joint managing conservators. IT IS ORDERED that ROSEMARIE LENZ is appointed the joint managing conservator, with the right to establish the primary residence of the children within Bexar County, Texas. IT IS FURTHER ORDERED, as a condition of possession to the joint managing conservatorship, that the children shall reside in and attend schools in Bexar County, Texas. This order in no way restricts the rights of Rosemarie Lenz to change her own address and domicile. If Rosemarie Lenz decides to move, this court shall entertain the requests to modify the periods of possession. This order references the mother's testimony of her desired plan to move.
The trial court entered findings of facts and conclusions of law in support of its order. Among other things, the trial court found that: (1) both children are well adjusted and successful in the school in which they are enrolled; (2) both children are involved in extracurricular activities; and (3) the children have established meaningful and significant friendships with their classmates and neighbors in the community where they reside in Bexar County. Based on the evidence before it, the trial court concluded that: (1) it is in the best interest of the children that Romy and Rudi continue as joint managing conservators; (2) it is in the best interest of the children that Romy have the right to determine the domicile of the children within Bexar County; (3) it is in the best interest of the children that they continue to reside in, and attend school in, Bexar County; and (4) it is in the best interest of the children that neither parent remove the children from Bexar County with the intent of changing their residence or domicile without a court order or written agreement.
On appeal, Romy attacks the trial court's order in seven points of error. With the exception of two issues related to attorney's fees and costs, Romy's basic complaint focuses on the trial court's imposition of the additional residency restriction, arguing that it violates unidentified "federal law," the United States and Texas Constitutions, and certain provisions of the Family Code. Romy does not approach the case as if the trial court disregarded the jury's answer to question one in which the jury found that the grounds for modification had been established. Rather, Romy contends the trial court erroneously disregarded jury question two by imposing the additional residency restriction. This approach is premised on Romy's position that "no evidence" arguments were not advanced in Rudi's motion for judgment n.o.v., and as such, according to Romy, the trial court's order must be based upon the trial court's interpretation of section 105.002 of the Family Code. Romy therefore focuses her energies analyzing the propriety of the trial court's action in relation to section 105.002 of the Family Code.
Based upon our review of the motion for judgment n.o.v. and the trial court's findings and conclusions, it is apparent that (1) the request for judgment n.o.v. did present a "no evidence" challenge to the jury's verdict, and (2) the court disregarded the jury's answer to question one on the basis that Romy failed to establish the best interest prong of section 156.202 (2) as a matter of law. Stated differently, the trial court found no evidence to support the jury's finding that removal of the Texas residency restriction was in the children's best interest. Question two, conditioned upon question one, necessarily fell with the trial court's nullification of question one. With that in mind, we believe this case presents two primary issues for our review: (1) whether the trial court properly disregarded the jury's answer to question one, thereby necessarily negating the jury's answer to question two; and (2) whether the trial court, after concluding that the evidence did not support deletion of the Texas residency restriction in the original order, had the authority to modify the order to further restrict the children's residency to Bexar County, Texas.
A judgment notwithstanding the verdict is properly entered when a legal principle precludes recovery, or when there is no evidence upon which a jury could base its findings. John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex. App.--Houston [1st Dist.] 1992, writ denied). When reviewing a no evidence point, we review only the evidence tending to support the jury's verdict and disregard all evidence to the contrary. Sherman v. First Nat'l Bank, 760 S.W.2d...
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