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In re J.G.W.8/23/2001
Pamela Walker Carter and Lanny Walker were divorced in July 1997. They had two minor children, J.G.W. and S.E.W., now ages eleven and nine, respectively. In connection with custody proceedings following the divorce , Lanny sought child support and healthcare insurance from Pamela and also filed certain tort claims against Pamela and her new husband, Loren Carter. The trial court granted Pamela and Loren's motion for partial summary judgment on the tort claims and dismissed all of Lanny's claims. Lanny now appeals that judgment to this Court.
During the pendency of the divorce , Lanny was granted temporary custody of the children. On June 4, 1997, before the divorce was final, Pamela and Loren (her boyfriend whom she later married) absconded with the children. On June 11, 1997, they were located in Flagstaff, Arizona. Pamela and Loren were arrested, and both pled guilty to felony interference with child custody. In the final decree of Pamela and Lanny's divorce, Lanny was granted sole managing conservatorship of the children, with restricted possession and access to Pamela.
In September 1997, Pamela filed a petition to modify the parent- child relationship, seeking primary conservatorship. A mediation ensued, resulting in Pamela's gaining standard possession and access to the children.
In July 1998, Pamela filed her second petition to modify the parent-child relationship, seeking primary conservatorship. Lanny filed a counter petition against Pamela and a third-party claim against Loren, alleging intentional infliction of emotional distress, interference with child custody, and civil conspiracy. In December 1998, an agreed order was entered in which Pamela and Lanny were named joint managing conservators of the children, with Lanny retaining the primary right of possession and ability to designate the residence of the children. The order contained an additional agreement that neither party would file any pleading seeking modification regarding visitation, conservatorship, or support for one year. The order was silent concerning Lanny's counter petition.
In January 2000, Pamela brought suit under Tex. Fam. Code Ann. ยง 156.202 (Vernon 1996), seeking appointment as the primary custodial parent. In response, Lanny filed an amended counter petition and third- party claim, reasserting his tort claims against Pamela and Loren for intentional infliction of emotional distress, interference with child custody, and civil conspiracy. He also filed a counter petition seeking child support and healthcare insurance coverage for the children from Pamela. Lanny filed a motion for summary judgment on Pamela's third request for modification of the custody arrangement. The trial court granted this motion. Pamela and Loren filed a motion for partial summary judgment on Lanny's tort claims based on the affirmative defenses of res judicata, estoppel, and merger. The trial court also granted this motion and dismissed all of Lanny's claims, including his claims for child support and healthcare insurance.
Summary judgment is proper when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 379 (Tex. App.-Texarkana 1989, no writ). The question on appeal is not whether the summary judgment proof raises a fact issue with reference to the essential elements of the plaintiff's cause of action, but whether the summary judgment proof establishes that the movant is entitled to summary judgment as a matter of law. Gonzalez v. Mission Am. Ins.
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