Velez, Maria Esperanza v. Mitsak, Charles John--Appeal from 65th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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MARIA ESPERANZA VELEZ, ) No. 08-01-00246-CV

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Appellant, ) Appeal from

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v. ) 65th District Court

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CHARLES JOHN MITSAK, ) of El Paso County, Texas

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Appellee. ) (TC# 2001-CM-3717)

OPINION ON MOTION CLARIFICATION

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 filing which becomes effective upon the expiration of our plenary power. We wish it were that easy. Our prior opinion recognized Athat 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.

October 23, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Publish)