Velez v. Mitsak

Court of Appeals of Texas

Velez v. Mitsak

89 S.W.3d 84, 2002 Tex. App. LEXIS 7575, 2002 WL 31387062

CourtCourt of Appeals of Texas

DecidedOctober 23, 2002

Docket08-01-00246-CV

StatusPublished

Cited by5 cases

This text of 89 S.W.3d 84 (Velez v. Mitsak) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Velez v. Mitsak, 89 S.W.3d 84, 2002 Tex. App. LEXIS 7575, 2002 WL 31387062 (Tex. Ct. App. 2002).

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Opinion

OPINION ON MOTION CLARIFICATION

ANN CRAWFORD McCLURE, Justice.

Appellant, Maria Esperanza Velez, has filed a motion for clarification of our judgment alleging that Charles John Mitsak has filed a notice of nonsuit in the trial court below. Velez contends that this procedural maneuver was designed to obviate our ruling and to avoid returning Ezra to the jurisdiction of the Texas courts. In response, Mitsak concedes that the order granting the nonsuit is void and without effect but suggests that we may treat it as a premature fifing which becomes effective upon the expiration of our plenary power. We wish it were that easy. Our prior opinion recognized “that Mitsak and Ezra have left the jurisdiction and that our ruling necessitates their return.”

As is true with most contested custody litigation, the parties ascribe ill will, evil motives, and bad faith toward one another. We reiterate that without an evidentiary record properly before us, we cannot and do not ascertain the legitimacy of these complaints. It is the function of the trial court to do so as, he is the sole judge of the credibility and demeanor of the witnesses. The proper exercise of his authority, however, necessitates the presence of the parties and the child within the jurisdiction of the court. Nevertheless, we agree with Mitsak that the trial court is in the better position to determine the conditions of the return and the specifics of the order.

The motion for clarification is granted in part. We reverse and remand to the trial court for further proceedings. The trial court is directed to order the return of the child to the jurisdiction of the court upon the terms and conditions he deems appropriate.

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OPINION ON MOTION CLARIFICATION

ANN CRAWFORD McCLURE, Justice.

Appellant, Maria Esperanza Velez, has filed a motion for clarification of our judgment alleging that Charles John Mitsak has filed a notice of nonsuit in the trial court below. Velez contends that this procedural maneuver was designed to obviate our ruling and to avoid returning Ezra to the jurisdiction of the Texas courts. In response, Mitsak concedes that the order granting the nonsuit is void and without effect but suggests that we may treat it as a premature fifing which becomes effective upon the expiration of our plenary power. We wish it were that easy. Our prior opinion recognized “that Mitsak and Ezra have left the jurisdiction and that our ruling necessitates their return.”

As is true with most contested custody litigation, the parties ascribe ill will, evil motives, and bad faith toward one another. We reiterate that without an evidentiary record properly before us, we cannot and do not ascertain the legitimacy of these complaints. It is the function of the trial court to do so as, he is the sole judge of the credibility and demeanor of the witnesses. The proper exercise of his authority, however, necessitates the presence of the parties and the child within the jurisdiction of the court. Nevertheless, we agree with Mitsak that the trial court is in the better position to determine the conditions of the return and the specifics of the order.

The motion for clarification is granted in part. We reverse and remand to the trial court for further proceedings. The trial court is directed to order the return of the child to the jurisdiction of the court upon the terms and conditions he deems appropriate.

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Bluebook (online)

89 S.W.3d 84, 2002 Tex. App. LEXIS 7575, 2002 WL 31387062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/velez-v-mitsak-texapp-2002.

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