In Re BOG

48 S.W.3d 312, 2001 WL 468509
CourtCourt of Appeals of Texas
DecidedJuly 5, 2001
Docket10-00-198-CV
StatusPublished

This text of 48 S.W.3d 312 (In Re BOG) 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
In Re BOG, 48 S.W.3d 312, 2001 WL 468509 (Tex. Ct. App. 2001).

Opinion

48 S.W.3d 312 (2001)

In the Interest of B.O.G., A Child.

No. 10-00-198-CV.

Court of Appeals of Texas, Waco.

May 2, 2001.
Rehearing Overruled July 5, 2001.

*313 Rick Davis, D. Michael Holt, Bryan, for appellant.

Ray Epps, Pamela E. George, Houston, Dana L. Zachary, Bryan (Attorney Ad Litem), for appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

VANCE, Justice.

This is a case about a Texas court's jurisdiction over the conservatorship and possession of, access to, and child support for a child who has moved to another state. The trial court, responding to a request by the managing conservator who had moved to Virginia with the child, dismissed all pending motions for lack of jurisdiction, including motions to modify conservatorship and child support filed by the possessory conservator, and a motion to modify visitation filed by the grandparents who had court-ordered grandparental visitation rights. We will affirm the trial court's order in part and reverse in part, based on the law as it existed at the applicable times.

PROCEDURAL HISTORY

This case has an arduous procedural history. From the clerk's record, we glean the following pertinent events:

• February 8: Gregg and Sabrina Greer were divorced in the County Court at Law No. 2, Brazos County, Texas. Sabrina was appointed sole managing conservator of B.O.G., Gregg's and Sabrina's son, and Gregg was appointed possessory conservator and ordered to pay child support.

• May 24: An order was issued with minor modifications of visitation provisions pertaining to Gregg.

• November 8: Gregg, who had moved to Canada for medical reasons, filed a motion to modify his visitation rights. Gregg's parents, John and Wanda Greer, residents of Texas, intervened with a petition for grandparental visitation rights.

• April 29: Gregg filed a "supplement" to his motion to modify, requested to be named joint managing conservator, and asked that his child support be reduced.

• May 11-15: After a jury trial, John and Wanda were awarded visitation rights. Gregg requested that his conservatorship issue also be presented to the jury, but the trial court refused.

• July 22: A "Decree Granting Grandparent Access" was signed. Separately, also on July 22, an order was issued modifying Gregg's visitation rights but not addressing his requests to be named joint managing conservator and to modify child support.

• August 1: Sabrina and B.O.G. moved to Virginia.

• August 14: The trial judge recused herself, and the judge of the 85th District Court of Brazos County was assigned to preside over the case.

• August 20: John, Wanda, and Gregg filed a motion for a new trial. John *314 and Wanda wanted their access and possession rights in the decree modified. Gregg complained that he should have had a jury trial on his motion to be appointed joint managing conservator and about his motion to modify child support not being heard. All three wanted attorney's fees from the trial.

• November 12: The motion for a new trial was denied, but it specifically excepted "the Motion to Modify In Order to Reduce Child Support which was filed by Gregg Only Greer [which] remains pending since the Decree entered July 22, 1998 was not final in that regard. Since the Court retains continuing exclusive jurisdiction over the case, said Motion to Modify will be determined at a later date to be determined by the Court.... [A]ll other relief not expressly granted herein is denied."

• October 12: Gregg, John, and Wanda appealed from both the decree and the order issued on July 22, 1998. Sabrina did not file cross-points.

• February 12: Gregg filed another motion to modify the order of May 24, 1995, and requested to be appointed sole managing conservator and that child support be modified accordingly.

• November 18: The Fourteenth Court of Appeals dismissed the appeal as moot when, after oral argument, Gregg, John, and Wanda sent the court a letter that there were motions pending in the trial court to modify and to enforce the decrees.

• December 20: Pursuant to a motion to enforce filed by Gregg, the trial court held Sabrina in contempt, placed her on five years probation, and ordered her to pay $12,000 in attorney's fees.

• January 14: Sabrina filed a counter-motion to modify, requesting the court to suspend Gregg's, John's, and Mary's visitation rights. She also filed separate motions for contempt against Gregg and against John and Wanda.

• January 26: Sabrina filed a motion for a preferential trial setting on Gregg's motion for conservatorship, Gregg's motion to reduce child support, and her counter-motion to modify.

• March 10: Gregg filed an "amended" motion to modify the order of July 22, 1998, and requested that he be appointed either sole or joint managing conservator and that child support be modified accordingly. Gregg did not specify which previous motion he was amending.

• March 21: John and Wanda filed a motion to enforce in which, among other things, they requested the relief of additional visitation as appropriate under the Family Code.

• March 29: Sabrina filed a motion to dismiss "all pending matters for lack of jurisdiction."[1] Sabrina claimed B.O.G. had a new home state, and therefore jurisdiction over B.O.G. was in Virginia. In the motion, Sabrina requested the following relief: "All pending matters pertaining to custody, possession or access that changes the original order must be dismissed, or transferred to the State of Virginia." *315 Sabrina acknowledged in the motion that Gregg's motion to modify child support (which order was to be modified was unspecified) and his February 12, 1999, motion to modify conservatorship were still pending in the trial court.

• April 5: A hearing was held on Sabrina's motion to dismiss.

• May 15: The trial court issued an order granting Sabrina's motion to dismiss, and specifically dismissed Gregg's motion to modify conservatorship.[2] The court also dismissed "all pending motions to modify filed by any party ... including" Gregg's motion to modify child support, Sabrina's counter-motion to modify, and John's and Wanda's motion to modify grandparent visitation. There was a "mother hubbard" clause in the order which denied "[a]ll other relief requested by any party." Gregg, John, and Wanda appeal from this order.[3]

WHICH MOTIONS?

Gregg, John, and Wanda complain on appeal that the trial court had jurisdiction over their motions, and should not have dismissed them for lack of jurisdiction. The numerous motions and orders on file do not always specify to which other orders or motions they refer, making it difficult to know which motions were pending at the time of the May 15 order. The question of which motions were pending is important because the trial court loses jurisdiction to hear motions filed after the child and the custodial parent have resided in another state six months or more.

There were several possible motions pending on May 15, 2000:[4]

• Gregg's November 8, 1996 motion to modify his visitation rights. (This appears however to have been disposed of by the court's July 22, 1998, order.)

• Gregg's April 29, 1998, "supplement" to his motion to modify, in which he requested to be named joint managing conservator and that his child support be reduced.

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In the Interest of B.O.G.
48 S.W.3d 312 (Court of Appeals of Texas, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
48 S.W.3d 312, 2001 WL 468509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bog-texapp-2001.