Opinion
No. 05-08-00092-CV
Opinion issued August 3, 2009.
On Appeal from the 330th District Court, Dallas County, Texas, Trial Court Cause No. 05-09233-Y.
Before Justices WRIGHT, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
David A. Schum appeals the trial court's denial of his motion for new trial in the underlying suit arising out of the parties' divorce decree. In two issues, Schum argues the trial court erred in making the domicile restriction in the divorce decree conditioned on Schum's meeting financial obligations and in refusing to modify the domicile restriction in response to his motion to modify and motion for new trial. We affirm the trial court's judgment.
Schum and Jean Marie Drendel were married in Naperville, Illinois in December 1997. Schum and Drendel each had four daughters from previous marriages. Schum and Drendel moved to Dallas. In May 2005, Schum filed for divorce, and a divorce decree was entered on October 4, 2006. Schum and Drendel were named joint managing conservators of their minor child. On November 3, 2006, Schum filed a timely motion for new trial and, in the alternative, motion to modify, correct, and reform the divorce decree. On January 4, 2007, the trial court granted Schum's motion for new trial "on the issues of visitation, access and possession, and child support." On October 18, 2007, the trial court entered a final divorce decree naming Schum and Drendel joint managing conservators of the child. The October 18, 2007 divorce decree contained the following domicile restriction:
IT IS ORDERED that the primary residence of the child shall be Dallas County, Texas and counties contiguous thereto and/or Naperville, Illinois and the parties shall not remove the child from Dallas County, Texas and counties contiguous thereto and/or Naperville, Illinois for the purpose of changing the primary residence of the child until modified by further order of the court of continuing jurisdiction or by written agreement signed by the parties and filed with the court.
This appeal followed.
In his first issue, appellant complains the October 4, 2006 divorce decree improperly made appellant's rights to possession of the child under the terms and conditions of the divorce decree and the domicile restrictions contingent upon payment of the child support judgment. However, the record shows the trial court granted Schum's motion for new trial following the October 4, 2006 divorce decree. The October 18, 2007 divorce decree made no reference to the payment of child support as a factor in determining the child's residency. When the trial court granted Schrum's motion for new trial, this had the legal effect of vacating the prior judgment and of returning it to the docket as though there had been no previous trial or hearing. Pinkley v. Vega, 768 S.W.2d 473, 475 (Tex.App.-El Paso 1989, no writ). We overrule appellant's first issue.
In his second issue, appellant argues the trial court ordered that the residency restriction on Drendel was dependent on Schum making timely child support payments, among other financial requirements, in violation of public policy. Appellant complains the trial court refused to modify the portion of the 2006 divorce decree relating to the residency restriction and did not grant a new trial on that issue. Thus, appellant argues, the trial court erred by denying the motion to modify and motion for new trial relating to the residency restriction in the 2006 decree, and the residency restriction was improperly " de facto incorporated into the 2007 Decree." Having already determined that the trial court granted a motion for new trial, thus vacating the 2006 divorce decree, we cannot conclude the domicile restriction in the 2006 decree was somehow incorporated into the 2007 divorce decree. See id. We overrule appellant's second issue.
We affirm the trial court's judgment.