Summary
utilizing both the Lenz and Holley factors in a relocation case
Summary of this case from C.B. v. A.B.Opinion
No. 10-05-00182-CV
Opinion delivered and filed July 12, 2006.
Appeal from the 231st District Court, Tarrant County, Texas, Trial Court No. 231-334768-02.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurring).
MEMORANDUM OPINION
This is a divorce case. Because we find that the trial court did not abuse its discretion by appointing Mari Jain Womack as a joint managing conservator with the right to designate the primary residence of their children without regards to geographic location, we affirm.
Background
William and Mari Jain Womack work and live abroad. They met while both were employed by the United States Embassy in Dakar, Senegal. They married in 1992 and had two children. Mari Jain is employed by the Foreign Service, a division of the State Department which requires its employees to bid on new assignments at different locations across the globe every three years.
At the beginning of their marriage, William was employed by the Air Force, but later procured employment with Atlas Air as a pilot. Typically, William flew international routes for two weeks, and stayed home for two weeks. Throughout their marriage, the couple lived in Senegal, Japan, Washington D.C., and The Hague. As Mari Jain received new assignments from the Foreign Service, William flew out of a nearby Atlas Air base.
In 2002, while living in The Hague, the couple sought a divorce. Throughout the divorce proceedings, Mari Jain continued to live in The Hague while William moved to Paris, a three-hour train ride from The Hague. William complied with the temporary court orders and visited his children one weekend a month, plus alternating school holidays.
During the course of the divorce proceedings, the time arrived for Mari Jain to bid for another job placement in the Foreign Service. She was reassigned to Tegucigalpa, Honduras in 2004. William opposed Mari Jain's assignment on grounds that it denied him frequent and continuing contact with his children and placed the children in an unsafe and violent environment. The trial court appointed Mari Jain and William as joint managing conservators. Over William's objections, the trial court granted Mari Jain the right to designate the primary residence of the children without geographic limitation.
On appeal, William argues in one issue that the trial court abused its discretion by allowing Mari Jain the right to designate the primary residence of the children without geographic limitation.
Applicable Law
The question of conservatorship is left to the "sound discretion of the trial court when it sits as trier of fact." Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex.Civ.App.-Dallas 1981, no writ). Therefore, we review a trial court's order regarding conservatorship under an abuse-of-discretion standard. See In re A.C.S., 157 S.W.3d 9, 20 (Tex.App.-Waco 2004, no pet.). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, and without reference to any guiding rules or principles. See K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000). We do not review "findings of fact in a child custody case under traditional legal and factual sufficiency standards," but "legal and factual sufficiency are factors which can be considered in determining whether an abuse of discretion has occurred." A.C.S., 157 S.W.3d at 20 (citations omitted); See London v. London, 94 S.W.3d 139, 143-44 (Tex.App.-Houston [14th] 2002, no pet.). In determining issues of conservatorship and possession of a child, the court's primary consideration is the best interest of the child. See TEX. FAM. CODE ANN. § 153.002 (Vernon 2002).
Given that both parties chose mobile professions, this case varies from the standard relocation case. However, both parties argue their respective positions using factors commonly employed by courts in analyzing relocation cases. We find these factors, when used in the light of the best interest of the child, beneficial to our analysis.
One set of factors we will consider are the Lenz factors. See Lenz v. Lenz, 79 S.W.3d 10, 14-16 (Tex. 2000). These include: (1) reasons for and against the move; (2) education, health, and leisure opportunities; (3) accommodation of special needs or talents of the children; (4) effect on extended family relationships; (5) effect on visitation and communication with the noncustodial parent; (6) the noncustodial parent's ability to relocate; (7) the parent's good faith in requesting the move; (8) continuation of a meaningful relationship with the noncustodial parent; (9) economic, emotional, and education enhancement for the children and the custodial parent; (10) employment and education opportunities of the parents; (11) ages of the children; (12) community ties; and (13) the children's health and educational needs. See Lenz, 79 S.W.3d at 14-16; see also A.C.S., 157 S.W.3d at 24 (citing In re C.R.O., 96 S.W.3d 442, 449 (Tex.App.-Amarillo 2002, pet. denied)).
We will also consider a second set of factors commonly considered and cited in relocation cases as the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include: (1) desires of the children; (2) emotional and physical needs of the children; (3) emotional and physical danger to the children now and in the future; (4) parental abilities of the individuals involved; (5) programs available to those individuals to promote the best interest of the children; (6) plans for the children by these individuals; (7) stability of the home; (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. See Holley, 544 S.W.2d at 371-72; see also A.C.S., 157 S.W.3d at 24.
It is important to note, however, that cases such as these are "intensely fact-driven and consequently involve balancing numerous factors in the court's particular best-interest analysis." Cisneros v. Dingbaum, No. 08-03-00477-CV, 2005 Tex. App. LEXIS 2063 at *38 (Tex.App.-El Paso 2005, no pet.) (not designated for publication) (citing Lenz, 79 S.W.3d at 18-19); See In re Marriage of Jeffries, 144 S.W.3d 636, 639 (Tex.App.-Texarkana 2004, no pet.).
Analysis
Mari Jain works for the Foreign Service, a branch of the State Department. The State Department assigns her to a three-year post. After the term ends, Mari Jain must place six bids for a new assignment in her area of expertise. Of the six bids, she must pick three hardship posts and three different geographic regions. Hardship posts do not have the same quality of life as that of the United States. Three different types of posts exist: solo posts that allow no family members, unaccompanied posts that allow only spouses, and accompanied posts that allow both spouses and children.
At the end of Mari Jain's assignment at The Hague, she placed bids for six locations and prioritized three of them: Abu Dhabi, Buenos Aires, and Tegucigalpa. William's base with Atlas Air was transferred to New York. William opposed Mari Jain's bids and asked that she place bids for the Washington D.C. area so he could be near the children. Mari Jain chose not to bid on the available Washington D.C. positions because of the high cost of living. Ultimately, the State Department assigned Mari Jain to Tegucigalpa.
William argues that allowing Mari Jain to choose the primary residence of his children without regards to geographic location, particularly Tegucigalpa, discourages him from frequent and continuing contact with his children in violation of Texas public policy as stated in section 153.001 of the Family Code. See Tex. Fam. Code. Ann. § 153.001 (a)(1) (Vernon 2002). He argues Mari Jain's choice of Tegucigalpa makes his weekend visitation impractical and creates a hardship.
"The public policy of this state is to . . . assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child." TEX. FAM. CODE. ANN. § 153.001 (a)(1) (Vernon 2002).
William testified that it is impossible to take his children from Honduras to the United States for weekend visitations, while visitations with his children in Tegucigalpa would be difficult. Two commercial aircraft make daily flights into Tegucigalpa from the U.S. Because both planes depart for the U.S. less than an hour after their arrival, William lacks sufficient time to arrive, collect the children and board the plane for the return flight. William argues that the only way he can exercise his right to weekend visitations is to spend the weekends with his children in Tegucigalpa. This will require him to rent two hotel rooms and acquire transportation services. Transportation in Tegucigalpa is difficult. For safety reasons, the State Department recommends only one taxi service and cautions against public transportation.
William also argues that Mari Jain's choice of Tegucigalpa is not in the best interest of his children because it places his children in a dangerous and violent environment. As evidence of the dangerous living conditions in Tegucigalpa, William produced various published State Department warnings to U.S. citizens living or traveling to Honduras. These documents report that public transportation is unsafe and advise citizens not to use pubic [sic] buses. While private transportation is preferred, citizens are warned to use tinted windows to obscure the occupants from public view, employ security devices such as the Club or an alarm system, and only patronize businesses with armed guards.
The crime rate is also a concern. The State Department documents report that the justice system is slow and corrupt and exhibits an extremely low conviction rate on crime. Fifty percent of all robberies involve domestic employees. Kidnapping poses a serious problem, with young daughters being a favorite target. These kidnappings may have involved former police, the military, and corrupt elements within the Honduras security forces. William fears that when the time comes for Mari Jain to relocate, she may pick another location that is just as dangerous and inaccessible.
Mari Jain testified that William wanted to restrict her bids to the U.S., specifically Washington D.C. She explains that she did not bid for the D.C. area because when she and William previously resided there they lived from paycheck to paycheck and the State Department would not pay for the children's private education. Even had Mari Jain been assigned to Washington D.C., she would still have to bid again in three years. Further, if Mari Jain refused an assignment by the State Department, she could be fired.
Mari Jain also testified that she picked her bids with William in mind, constructing her choices so that William could maintain the same visitation opportunities as when she was living in The Hague and he was in Paris. Mari Jain stated that three-hour flights from Miami to Tegucigalpa occur on a daily basis. In fact, Atlas Air maintains a base in Miami and the three-hour flight equals the travel time that it took William to take the train from Paris to The Hague. Mari Jain argues that during their marriage William commuted long distances. She testified that when they decided to live in The Hague, William had originally agreed to commute to New York and back when he had to work. However, Atlas opened a base in London so William did not have to commute from New York. Also, Mari Jain testified that she is willing to accommodate and coordinate the visitations to fit William's schedule of two weeks at work and two weeks off.
Mari Jain argues that her children would live in a safe environment. Mari Jain's house in Tegucigalpa would have 24-hour security and she would be living with other Americans. The children would attend the American school which meets U.S. standards and is accredited by the U.S. Mari Jain states that there has been no kidnapping of a child of a State Department employee. The State Department provides for the security and safety of the families working there; otherwise it would not allow its employees to bring their families to this particular post. Mari Jain argues that if the State Department did not view Tegucigalpa as safe for children, the post would not have been designated as appropriate for an employee's spouse and children. Finally, Mari Jain argues that the cultural enrichment the children will receive in foreign countries is exactly the kind of upbringing that she and William envisioned for their children.
The reason for the relocation of the children is directly tied to Mari Jain's employment with the State Department. See Lenz, 79 S.W.3d at 14-16. As long as Mari Jain is employed in this capacity with the State Department, she will be moving every three years to a different location around the globe. The relationship William has with his children consisted of his absence for two weeks at a time and having to travel to return to his home. Further, William is accustomed to traveling long distances to visit with his family, at both the time of the marriage and at the time of his divorce. Therefore, allowing Mari Jain to continue in her lifestyle would not greatly affect the children's visitation and communication with William, while restricting her ability to designate the children's primary residence would impact her employment.
Both parties chose an internationally mobile lifestyle in which to raise their family. Upon divorce, both parties chose to continue that lifestyle. Mari Jain's relocation is not a new development between the parties, but was the status quo both at the time of the marriage, as well as at the time of the divorce. Therefore, the divorce decree is not in violation of the Texas public policy of ensuring that children have frequent and continuing contact with their children. See Tex. Fam. Code. Ann. § 153.001 (a)(1). Accordingly, we find that the trial court did not abuse its discretion in finding that Mari Jain has the right to designate the primary residence of her children without regard to geographic location. See Jeffries, 144 S.W.3d at 639; A.C.S., 157 S.W.3d at 20; Holley, 544 S.W.2d at 371-72; Lenz, 79 S.W.3d at 14-16. We overrule William's sole issue.
Conclusion
Having overruled William's sole issue, we affirm the judgment of the trial court.
CONCURRING OPINION
Because the issue in this case is whether or not the trial court abused its discretion in determining as part of the dissolution of the marriage that Mari Jain would have the right to designate the primary residence of the children without regard to geographic location, much of the discussion in the opinion about relocations is simply not relevant.
Late in the opinion, the majority states:
The relationship William has with his children [during the marriage] consisted of his absence for two weeks at a time and having to travel to return to his home. Further, William is accustomed to traveling long distances to visit with his family, at both the time of the marriage and at the time of his divorce. Therefore, allowing Mari Jain to continue in her lifestyle would not greatly effect the children's visitation and communication with William, while restricting her ability to designate the children's primary residence would impact her employment.
Both parties chose an internationally mobile lifestyle in which to raise their family. Upon divorce, both parties chose to continue that lifestyle.
Majority op. pg. 8.
We do not reevaluate the trial court's original determination of who should have the right to designate a geographic location based upon a particular contemplated or subsequent relocation. The issue — of who has the right to designate the child's geographic residence — is broader than that. And the evidence from the majority opinion which I have quoted above is the evidence that is relevant to that determination. The Court's conclusion that "we find that the trial court did not abuse its discretion in finding that Mari Jain has the right to designate the primary residence of her children without regard to geographic location" is correct. Id. I, therefore, can concur in the judgment.