ROMERO V. TORT
| Decision Date | 24 June 2010 |
| Docket Number | No. 13-07-00758-CV,13-07-00758-CV |
| Parties | ERIC J. ROMERO, PH.D.,Appellant, v. ODRA JULIETA ZAPIEN A/K/A ODRA J. TORT, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the County Court at Law No. 1 of Hidalgo County, Texas.
Before Chief Justice Valdez and Justices Yanez and Garza
This appeal pertains to various orders involving the divorce of appellant, Eric J. Romero, Ph.D., and Odra J. Zapien a/k/a Odra J. Tort, and various child custody issues. By five issues, appellant, advancing pro se, contends that the trial court: (1) abused its discretion in awarding appellee excessive child support in contravention of the family code; (2) violated appellant's constitutional rights regarding possession and visitation with the couple's only child; (3) treated appellant unfairly in ordering him to pay appellee's attorney's fees; (4) abused its discretion in removing a geographic restriction pertaining to appellee's possession of the couple's child, even though appellant had requested a jury trial on this issue; and (5) treated him unfairly and delayed hearings on the various motions, which "amplified the damage that Mrs. Tort has done to the parent/child relationship." We affirm, in part, and reverse and remand, in part.
Appellant and appellee were married on May 11, 2001. While married, appellant and appellee had one child, a daughter. On November 22, 2002, appellant filed his original petition for divorce in Hidalgo County, Texas. At the time of the divorce, both parties resided in Edinburg, Texas. In addition to his divorce petition, appellant requested a temporary restraining order preventing appellee from relocating and attached an affidavit to his divorce petition, stating that he had reason to suspect that appellee would relocate to El Paso County, where her parents live.
After a hearing, the trial court granted appellant's request for a divorce and entered a final decree of divorce, which named appellant and appellee joint managing conservators and granted appellee the exclusive right "to establish the primary residence of the child within Hidalgo County, Texas." The trial court also imposed a geographic restriction, which prohibited appellee from relocating from Hidalgo County. The restriction provided as follows: ===
ODRA JULIETA ZAPIEN will not relocate from Hidalgo County, Texas, unless she seeks the authority of this Court or ERIC ROMERO relocates from Hidalgo County, Texas, in which case, [ODRA] JULIETA ZAPIEN, Respondent, and her daughter may relocate to any place in the world without seeking the authority of this Court. Upon ERIC ROMERO relocating more than 100 miles away from ODRA JULIETA ZAPIEN, the standard visitation=== ===as outlined in the Texas Family Code Section 153.313-Parents Who Reside More Than 100 Miles Apartwill apply.===
(Emphasis in original.) The final divorce decree also, among other things: (1) set forth standard visitation for both appellant and appellee; (2) ordered appellant to pay $1,073 per month in child support to appellee; and (3) ordered appellant to provide health insurance for the minor child and that the parties evenly split heath care costs not covered by insurance.
While he was living in Edinburg, appellant was employed as a professor at the University of Texas-Pan American. At some point after the divorce decree was entered, appellant voluntarily chose to move to Florida to take a more lucrative job. However, while he was living in Florida, appellant decided that he wished to move back to Edinburg to be closer to his daughter. Appellant tendered his resignation to his employer in Florida and moved back to Edinburg without a job.
On July 23, 2007, appellant, advancing pro se, filed an original petition to modify the divorce decree. Appellant alleged that his child support and health insurance obligations pertaining to the couple's child should be modified because he had no health insurance and no income, given that he was unemployed. Appellant requested that: (1) appellee provide health insurance for the child; (2) he pay for half of the child's private school tuition directly to the school as child support; (3) appellee be ordered to keep the child in private school; and (4) his child support obligations be reduced to that of a minimum wage worker.
The trial court set a hearing on appellant's motion to modify for September 18, 2007; however, this setting was reset because appellee's attorney apparently was not notified of the hearing. In the meantime, appellee filed a motion for enforcement of child support by contempt on October 23, 2007. In this filing, appellee alleged that appellant had not paid his court-ordered child support of $1,073 for the months of July 2007 to October 2007, andthat appellant had violated the divorce decree by allowing health insurance coverage for the child to lapse. Appellee requested that the trial court award her: (1) $4,292 in child support arrearages; (2) $399 in insurance premiums; (3) $595 in unpaid medical reimbursements; and (4) attorney's fees and court costs.
On November 7, 2007, the trial court conducted a hearing on appellee's motion for enforcement. After hearing arguments from both parties and appellee's testimony, the trial court recessed without making a decision. Later, on November 16, 2007, appellant filed a pro se amended motion to modify the divorce decree requesting that he be granted "joint physical possession" of his daughter. In December 2007, the trial court conducted two hearings on appellant's original motion to modify and appellee's motion for enforcement. On December 26, 2007, the trial court entered an order holding appellant in contempt for failing to pay his child support. The trial court found that appellant had failed to pay any child support from July 1, 2007 to December 1, 2007, and that he was in arrears for $6,438. The $6,438 in arrearages was awarded to appellee in addition to $950 in attorney's fees and court costs and $437.50 in health insurance expenses corresponding to the relevant time period. The trial court did, however, grant, in part, appellant's motion to modify and reduced his child support payments to $575 per month and ordered him to pay appellee for any health insurance premiums that appellee's employer did not cover.1
The trial court conducted a hearing on appellant's pro se amended motion to modify on February 1, 2008. At this hearing, appellant, still advancing pro se, argued his entitlement to joint physical possession of the child and alleged that appellee may violate the geographic restriction in the divorce decree by moving to El Paso in the near future. Among the witnesses testifying at this hearing was appellee's counsel, who stated that hebills at $175 per hour; he had done fifteen hours of work on the case; and he had done family law for seventeen years in proving up entitlement to $4,125 in attorney's fees. On February 27, 2008, the trial court entered an order denying appellant's pro se amended motion to modify requesting joint physical possession of the child, but some modifications were made to the visitation schedule.2 The trial court also granted appellant full access to determining the education of the child and encouraged the parties to leave the child in private school because she was thriving. With respect to appellant's assertion regarding the geographic restriction, the trial court declined to lift the restriction at that time. Moreover, the trial court awarded appellee's counsel $1,000 in attorney's fees.
On March 25, 2008, appellant filed a pro se motion for new trial, which was overruled by operation of law. See Tex. R. Civ. P. 329b(c). On July 30, 2008, appellee filed a petition to modify the parent-child relationship, seeking to lift the geographic restriction contained in the divorce decree and modify appellant's visitation rights to those associated with parties residing more than 100 miles apart. Appellee argued that the geographic restriction had already been voided when appellant chose to move to Florida "for almost a year." Appellant filed a pro se answer to appellee's motion to modify and a counter-petition to modify the parent-child relationship. In this filing, appellant requested a jury trial, objected to the lifting of the geographic restriction, and requested that he be named primary managing conservator with full custody of the child.
Later, on August 26, 2008, appellant, now represented by counsel, filed a motion for enforcement, asking that he be named the primary managing conservator for hisdaughter and requesting additional visitation with the child and that appellee be held in contempt for moving to El Paso with the child. Appellant filed his first amended motion for enforcement on October 9, 2008, asserting the same arguments made in his original motion for enforcement and alleging that appellee allowed for the health insurance covering the child to lapse and that he incurred $2,978.63 in medical expenses treating the child for a hernia.
The trial court conducted hearings on all the remaining pending motions appellant's motion for enforcement and appellee's petition to modify the parentchild relationship. After hearing testimony from both appellant and appellee, the trial court entered an order on August 18, 2009. In this order, the trial court noted that "[a] jury was waived for the motion for enforcement, and all questions of fact and of law were submitted to the Court." Moreover, the order recited that appellee was in contempt for: (1) leaving Hidalgo County without court authorization; (2) denying access of the child to appellant; (3) failing to pay her share of the medical expenses associated with the child; and (4) failing to provide health insurance for the child for five months once she relocated to El Paso. As a result of her violations, the trial court...
To continue reading
Request your trial