in Re J.W.L.

291 S.W.3d 79

Opinions

OPINION

TERRIE LIVINGSTON, Justice.

Relator, J.W.L.,¹ filed this petition for writ of mandamus attacking the authority of the trial court to approve the agreed orders that relator had entered into with his former spouse’s parents (the grandparents) regarding the child, M.W.L., and to enter subsequent temporary orders. We deny relief.

Background Facts

Relator and his former wife entered into an agreed final decree of divorce in December 2000 regarding both property and custody of their daughter, M.W.L. They were both named joint managing conservators with the mother having primary custody. They entered into one modification on February 5, 2004. On October 10, 2007, the mother and her parents, with her consent, filed a petition to modify the parent-child relationship regarding the existing orders, whereby the grandparents sought primary custody of M.W.L. upon the mother’s anticipated death. On October 17, 2007, the day after the mother’s death, the grandparents amended their petition, adding M.W.L.’s stepfather as a party.

Eventually, at a hearing on November 7, 2007, relator and the grandparents entered into an agreed order in the suit to modify the parent-child relationship (Agreed Order). Under its terms, relator was named sole managing conservator and the grandparents were named nonparent possessory conservators and given rights of possession to M.W.L. on the second and fourth weekends of each month during the school year, as well as some possession during the summer, the Christmas holiday, the child’s birthday, and the deceased mother’s birthday. The Agreed Order also required both parties to give each other at least sixty days’ prior written notice of a change of address. It contained no residence restriction, giving relator the right to determine M.W.L.’s primary residence. The Agreed Order recited that the court had retained jurisdiction of the case and of all parties and that no other court had ob tained continuing exclusive jurisdiction over the case. It was signed by all parties and their respective counsel, proved up at the November 7, 2007 hearing, and signed by the judge on January 18, 2008.

Relator and the grandparents operated under the Agreed Order for nearly seven months, but when the grandparents went to relator’s home to pick M.W.L. up for their extended one-week summer visitation, the home was abandoned and M.W.L. was not there. Relator had moved M.W.L. to Idaho without giving the grandparents the sixty days’ notice he was required to provide under the terms of the Agreed Order. Furthermore, relator left misleading messages stating he was relocating with M.W.L. to Florida. He refused to answer any calls. Eventually, by filing a petition for writ of habeas corpus, the grandparents were able to locate and return M.W.L. to Texas for emergency hearings on motions to enter and to enforce temporary orders. A temporary orders hearing took place on July 18, 2008. Despite being served with notice and being ordered to appear, relator did not appear. The trial court entered temporary orders and ordered that temporary custody of M.W.L. be given to the grandparents, that no custody be given to relator, and that if access should be given to relator, it would be supervised through Family Court Services.

On or about August 4, 2008 relator filed a special appearance, plea of forum non conveniens, original answer, affirmative defenses, request for the court to decline jurisdiction, and special exceptions. In September 2008, relator filed a motion to vacate the order to return the child, among other pleadings, and on October 7, 2008, the trial court held a hearing on relator’s special appearance. Relator appeared and testified but the trial court denied his special appearance. That was the only matter heard that day, and the other matters were not set until January 29 and 30, 2009. M.W.L. has remained with her grandparents since that time, and although given the opportunity to pursue other matters at the January 2009 hearing on his motion to vacate, such as temporary visitation, relator presented only his motion to vacate and a request for an indigency finding and appointment of counsel.²

This mandamus was filed on January 8, 2009. Although we ultimately deny mandamus relief in this matter, because relator is convinced there remains a standing defect that might impact the trial court’s jurisdiction, we will discuss that issue.

Issues Raised in This Mandamus Proceeding

Relator raises four issues in this proceeding: 1) whether the trial judge abused his discretion when he approved the January 18, 2008 Agreed Order entered into between relator and the grandparents in the underlying case; 2) whether the trial judge abused his discretion when he issued the July 18, 2008 temporary orders grant ing temporary possession of M.W.L. to the grandparents and removing her from relator’s possession; B) whether the trial judge abused his discretion when he denied relator’s special appearance on October 28, 2008; and 4) whether the trial judge abused his discretion when he did not rule on relator’s motion to vacate the July 18, 2008 temporary orders.³

Temporary Orders and Special Appearances in Family Law Cases

Generally, Texas appellate courts only have appellate jurisdiction over appeals from final judgments unless a statute specifically allows a particular type of interlocutory appeal. Ogletree v. Matthews, 262 S.W.3d 316, 319 n. 1 (Tex.2007); In re Roxsane R, 249 S.W.3d 764, 774 (Tex.App.-Fort Worth 2008, orig. proceeding). Temporary orders entered in family law cases are not appealable. Tex. Fam.Code Ann. § 105.001(e) (Vernon 2008); see also Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(7) (Vernon 2008) (listing types of appealable interlocutory orders); In re Roxsane R., 249 S.W.3d at 774-75. Normally, the grant or denial of a special appearance is subject to an interlocutory appeal; however, if it involves a family law matter, there is no such right to an interlocutory appeal. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7); see CHEK Inv., L.L.C. v. L.R, 260 S.W.3d 704, 706 (Tex.App.-Dallas 2008, no pet.). Therefore, we conclude and hold that the July 18, 2008 temporary orders, the October 28, 2008 denial of the special appearance, and the February 6, 2009 order denying relator’s motion to vacate were not subject to interlocutory appeal and therefore are all potentially subject to mandamus review for a determination as to whether the trial court abused its discretion. See, e.g., In re Derzapf, 219 S.W.3d 327, 334 (Tex.2007) (orig. proceeding). However, all of the substantive challenges asserted against the July 18 temporary orders, the October 28 denial of the special appearance, and the February 6 order denying relator’s motion to vacate are tied directly to and contingent upon a successful challenge to the standing issue raised by relator in his collateral attack against the Agreed Order he entered into with the grandparents, which we now turn to.

Was the January 18, 2008 Agreed Order Void?

The Agreed Order entered between relator and the grandparents is a different matter with respect to appealability. The order was agreed to by relator and the grandparents to settle the modification suit filed by one of the managing conservators (mother) and the grandparents shortly before M.W.L.’s mother’s death. While relator says he objected to jurisdiction at the time and now contends he was “forced under color of law to endure processes that culminated in a putative agreement between himself and the [grandparents] regarding his and the [grandparents’] legal status vis-a-vis [M.W.L.],” nothing in this mandamus record indicates that relator ever appealed the Agreed Order, which became final and appealable on January 18, 2008. See Tex. R.App. P. 25.1, 26.1. Unlike the other orders relator seeks to challenge, the Agreed Order was appealable, but relator never appealed it. See Tex.R.App. P. 26.1(b); In re K.L.V., 109 S.W.3d 61, 66-67 (Tex.App.-Fort Worth 2003, pet. denied). He now seeks to collaterally attack it by this proceeding some twelve months later. See, e.g., In re A.G.G., 267 S.W.3d 165, 169 (Tex.App.-San Antonio 2008, pet. denied); Tarrant County v. Denton County, 87 S.W.3d 159, 174 (Tex.App.-Fort Worth 2002, pet. denied). Relator contends, however, that the July 2008 temporary orders and the denial of the special appearance and of the motion to vacate were erroneously rendered because they were all based upon the allegedly void Agreed Order.

Relator contends that the trial court lacks subject matter jurisdiction over these proceedings and the parties because the grandparents never had standing to bring or maintain suit. While there is no set procedure for pursuing a collateral attack, it is limited to those judgments which are void or involve fundamental error. See In re A.G.G., 267 S.W.3d at 169. Furthermore, we are to presume the validity of a judgment and we may not use extrinsic evidence to establish a lack of jurisdiction; that is, the challenger must show that the judgment is void on its face. Id. Here, the Agreed Order recited,

1. Appearances

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Respondent, [J.W.L.], appeared in person and through attorney of record, David L. Cook, and announced ready for trial and has agreed to the terms of this order, to the extent permitted by law, as evidenced by the signature of Respondent and Respondent’s attorney appearing below.

2. Jurisdiction

The Court, after examining the record and the evidence and argument of counsel, finds that it has jurisdiction of this case and of all the parties and that no other court has continuing, exclusive jurisdiction of this case. All persons entitled to citation were properly cited.

Thus, relator not only appeared at the November 7, 2007 hearing with his counsel and agreed to the entry of a modification order with the grandparents at that hearing, but he and his counsel also signed the Agreed Order. Furthermore, the Agreed Order recites that the court determined that it had jurisdiction over both the case and the parties. Similar recitals have been held to be sufficient to establish the jurisdictional basis for a valid judgment. Id. Relator is simply unable to show that the Agreed Order is void on its face. We therefore hold that relator’s attempted collateral attack on the Agreed Order fails. Even addressing relator’s specific complaints regarding the grandparents’ standing, we further conclude his challenges fail for several reasons.

First, he states that upon the death of the managing conservator (M.W.L.’s mother), the managing conservatorship ended immediately and, therefore, under Greene v. Schuble, 654 S.W.2d 436, 437-38 (Tex.1983), there was no longer a valid, subsisting court order. He contends that the grandparents failed to show they had sufficient standing under the family code to pursue their suit to modify the parent-child relationship because, under Greene, the conservatorship orders between the mother and father ended immediately upon the mother’s death. Id. at 437-38 (holding portion of decree dealing with conservatorship no longer valid court order governing possession upon death of conservator for purposes of then section 14.10(e) (habeas proceeding for possession of child)). Therefore, he contends the grandparents’ suit to modify and the Agreed Order they entered were void con-servatorship orders, citing Gh'eene. In other words, relator argues that one cannot sustain a suit to modify an order that allegedly no longer exists.

Greene, however, does not apply to the issue of standing as presented in this mandamus proceeding. Id. at 438. Greene was strictly limited to an issue of possession. Id. (“Our opinion does not reflect consideration of the merits of the other proceedings pending in the court below.... The office of habeas corpus is limited to restoring possession of the children to the person legally entitled to present possession, and may not be used to relitigate custody.”). Standing is a threshold jurisdictional issue and is therefore a question related to the jurisdiction of the trial court over the parties and subject matter — here, the trial court’s authority to enter the Agreed Order.⁴ In re Smith, 260 S.W.3d 568, 572 (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding). As noted in the Smith case, “[standing does not mean the right to win; it is only a right to be heard.” Id. at 573 (quoting In re SSJ-J, 153 S.W.3d 132, 138 (Tex.App.San Antonio 2004, no pet.)). We specifically recognized this limitation of Greene in In re P.D.M., describing the supreme court’s decision as narrowly holding “that the death of a managing conservator renders the custody order not valid or subsisting only for purposes of a habeas proceeding.” In re P.D.M., 117 S.W.3d 453, 460 (Tex.App.-Fort Worth 2003, pet. denied). We also recognized that the supreme court in Grreene had “specifically contemplated that a suit for modification of the parent-child relationship could follow the death of the managing conservator and the issuance of a writ of habeas corpus to the possesso-ry conservator parent.” Id. So long as the challenge to the Agreed Order fails, then all of relator’s other challenges raised here also fail.

The grandparents contend that they had standing in 2007 to bring the suit to modify under family code section 102.003(a)(9). Tex. Fam.Code Ann. § 102.003(a)(9) (Vernon 2008) (granting standing to a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than ninety days preceding the date of the filing of the petition). Relator claims there is less than sufficient evidence to support this basis for standing. There is no record before us from the November 2007 modification hearing, and while we agree that the later record from the July 2008 habeas hearing is perhaps insufficient alone to support the grandparents’ standing for the prior November modification, we do not even need to reach that argument for several reasons.

As previously discussed, relator is prohibited from looking to extrinsic evidence and going behind the recitals in the judgment itself via this collateral attack to challenge the Agreed Order. In re A.G.G., 267 S.W.3d at 169.

Additionally, the grandparents claimed standing under section 102.004 of the family code, which provides that when both parents, a surviving parent, or the managing conservator either files a petition or consents to a suit by grandparents, the grandparents have standing. See Tex. Fam.Code Ann. § 102.004(a)(2) (Vernon 2008).⁵ Thus, in this case, M.W.L.’s mother, one of the managing conservators, had already consented to her parents’ custodi anship by filing the modification suit with her parents before her death. See Tex.R. Civ. P. 13 (signing of pleading by attorneys or parties constitutes certifícate by them that to the best of their knowledge, information, and belief ... [their claim] is not groundless or brought in bad faith), (“Every pleading ... shall be signed by at least one attorney.... A party not represented by an attorney shall sign his pleadings. ...”); In re A.M.S., 277 S.W.3d 92, 98 (Tex.App.-Texarkana 2009, no pet.) (holding that legislature does not specify when consent must be given or limit the form or nature of consent to any particular type for purposes of compliance with family code section 102.004(a)(2)). The death of one party to a suit does not automatically terminate the litigation, and it may proceed at the insistence of the surviving parties. Tex.R. Civ. P. 155; Eikel v. Bristow Corp., 529 S.W.2d 795, 801 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ). And, as set forth above, Greene does not apply to totally terminate the suit simply because of the mother’s death because there were other parties in the suit who had already established standing and sought to maintain the suit, i.e., the grandparents. Greene, 654 S.W.2d at 438. Therefore, the grandparents had standing at the time they filed the modification suit with their daughter before her death.

For these reasons, the trial court’s January 18, 2008 approval of the Agreed Order between relator and grandparents is not void based upon relator’s claim that the grandparents lacked standing. We therefore hold that relator’s attempted collateral attack on the Agreed Order fails. We overrule his first issue.

For the same reasons, the trial court also did not abuse its discretion in issuing temporary orders or by denying relator’s special appearance. We therefore also overrule relator’s second and third issues. Having already determined that his fourth issue is moot, we deny relator’s request for mandamus relief.

CAYCE, C.J. filed a concurring opinion.

Footnotes

1

. The names of the parents and parties subject to this original proceeding have been replaced with their initials or their relationship to the child in accordance with section 109.002(d) of the family code. Tex. Fam. Code Ann. § 109.002(d) (Vernon 2008); see Tex.R.App. P. 9.8 cmt.

2

. Had relator been successful in his motion to vacate, custody might have been returned to relator; however, relator never asked the trial court to modify the temporary orders so that he could have access or visitation with his daughter. Relator only asked for that relief from us in this mandamus proceeding which we tried to accommodate.

During the hearing on January 29, 2009, the trial court specifically asked relator whether he was requesting any other relief, including any hearing on temporary orders on possession or access to the child. Relator did not make any such request, so the hearing concluded. Under these circumstances, we do not see how the concurrence justifies its request to the trial court to "reconsider its temporary orders” when such relief has not yet been requested by relator. See In re Smith, 263 S.W.3d 93, 96 (Tex.App.-Houston [1st Dist.] 2006, orig. proceeding).

3

. We no longer need to address relator’s fourth issue because the trial judge ruled on relator’s motion to vacate at the conclusion of its January 2009 hearing and denied that relief; therefore, the issue is moot.

4

. We do not deny that Greene might apply to the issue of possession or custody in this case when those issues are actually tried and contested, but relator has not pursued that relief in the trial court yet.

5

. The modification provisions of Chapter 156 are incorporated into these Chapter 102 standing provisions. See Tex. Fam.Code Ann. § 156.002(b) (Vernon 2008) (“A person ... who, at the time of filing, has standing to sue under chapter 102 may file a suit for modification. ...”).