in the Interest of A.P., G.P., and T.P., Children

• Court: Court of Appeals of Texas
• Decided: March 24, 2020
• Docket: 01-18-00935-CV
• Status: Published

Opinion

Opinion issued March 24, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00935-CV ——————————— IN THE INTEREST OF A.P., G.P., AND T.P., CHILDREN

On Appeal from the 408th Judicial District Court Bexar County, Texas Trial Court Case No. 2012-CI-02330

MEMORANDUM OPINION

The trial court issued a order in a suit affecting the parent-child relationship.

Appellant, the Father in the suit affecting the parent-child relationship, attempts to

appeal a subsequent judgment which: (1) granted, in part, Father’s motion to enforce

against Mother, and (2) sua sponte appointed a parenting facilitator. In a single point

of error, Father asserts that “[t]he trial court erred in appointing a parenting facilitator with [sic] the confines of an enforcement action.” We dismiss the appeal for want of

jurisdiction. Although we grant appellant’s alternative request to consider the appeal

as a petition for writ of mandamus, we deny the petition.

Background

The trial court rendered a final order in Suit to Modify Parent-Child

Relationship on April 19, 2018. Mother and Father were designated as joint

managing conservators of their three children. Among other things, the order

required that Mother and Father (1) communicate through a co-parenting website

program “with regard to all communication regarding the children, except in the case

of an emergency or other matter” and (2) “timely post all significant information

concerning the health, education, and welfare of the children.”

Father filed a motion seeking (1) “enforcement of the Order in Suit to Modify

Parent-Child Relationship,” alleging eight violations by Mother of the order

requiring information to be posted on the co-parenting website program, and (2)

confirmation that his child support arrearages had been satisfied. Regarding

enforcement, Father requested the trial court hold Mother in contempt, assess a fine

of up to $500 per violation, and order Mother to attend counseling. Father also

sought attorney’s fees. Mother filed a general denial and requested attorney’s fees

incurred in defending against the motion to enforce.

2 A trial was held on June 5, 2018. Mother’s counsel opened by asserting that

the enforcement issues arose, at least in part, from the parties’ failure to

communicate and suggested the appointment of a parenting facilitator:

And then the violations, there is a reason for every one of them that we can figure out what it was. Two of them we don’t even – we can’t even identify what was the problem, and I think part of our problem with these two litigants is that they probably need some help learning how to communicate. They were doing a really good job until the new wife entered the picture and then the communication just deteriorated. So I’m thinking they probably need a parenting facilitator even though that’s not pled for. It would just help matters and solve all of these problems, but for every one of the enforcement issues that they are here today, there is a good reason why everything happened. So we are looking forward to showing you that.

The trial court, on the record, granted Father’s enforcement motion in part (as to 6

counts), and denied it in part (as to 2 counts); assessed a fine of $1,500; and denied

both parties’ request for attorney’s fees. The trial court further ordered the

appointment of a parenting facilitator. No objections were raised at trial to the

appointment of a parenting facilitator.

On June 19, 2018, the trial court issued its Order of Enforcement, Order

Denying Confirmation of Child Support Arrearages, and Order Appointing

Parenting Facilitator. In the order, the court appointed a parenting facilitator and

ordered the parties to equally split the cost.

Father filed a Motion to Modify/Reform Judgment on July 19, 2018,

challenging the appointment of a parenting facilitator and the denial of his request

3 for attorney’s fees. Among other things, Father asserted that the court “was without

authority to appoint a parenting facilitator within the confines of an enforcement

action” and “appointment of a parenting facilitator did not comply with notice and

hearing requirements.” The court denied the motion on August 28, 2018. Father filed

a notice of appeal on September 13, 2018.

Jurisdiction

This Court generally has jurisdiction over appeals from final orders arising

under the Texas Family Code unless a statute authorizes an interlocutory appeal. See

TEX. FAM. CODE § 109.002(b) (“An appeal may be taken by any party to a suit from

a final order rendered under this title.”); cf. TEX. CIV. PRAC. & REM. CODE §§ 51.012,

51.014(a) (listing appealable interlocutory orders); CMH Homes v. Perez, 340

S.W.3d 444, 447 (Tex. 2011) (“Unless a statute authorizes an interlocutory appeal,

appellate courts generally only have jurisdiction over appeals from final

judgments.”).

Appellant asserts that the trial court appointed a parenting facilitator in a

proceeding to enforce a final order in a suit affecting the parent-child relationship.

But orders enforcing a final judgment, such as contempt orders, are not themselves

final, appealable orders. See Cline v. Cline, 557 S.W.3d 810, 812 (Tex. App.—

Houston [1st Dist.] 2018, no pet.) (“Decisions in contempt proceedings cannot be

reviewed on direct appeal because contempt orders are not appealable, even when

4 appealed along with a judgment that is appealable, as here.”); In re B.A.C., 144

S.W.3d 8, 11–12 (Tex. App.—Waco 2004, no pet.) (overruling its previous holding

that contempt order is final, appealable order, citing 20 appellate court decisions,

and bringing its prior opinions on the issue “back into accord with the Texas

Supreme Court and the other courts of appeals”); see also In re Office of Att’y Gen.

of Tex., 215 S.W.3d 913, 915–16 (Tex. App.—Fort Worth 2007, orig. proceeding)

(explaining why contempt orders are not appealable and must be attacked by petition

for writ of habeas corpus or writ of mandamus).

A final, appealable judgment is one that actually disposes of all claims and

parties then before the court. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 192 (Tex.

2001). “Contempt proceedings, whether the court grants or denies the motion for

contempt, are not appealable because they ‘are not concerned with disposing of all

claims and parties before the court, as are judgments; instead, contempt proceedings

involve a court’s enforcement of its own orders, regardless of the status of the claims

between the parties before it.’” Hooper v. Hooper, No. 14–09–01024–CV, 2011 WL

334198, at *1 (Tex. App.—Houston [14th Dist.] Feb. 3, 2011, no pet.) (mem. op.)

(quoting In re Office of Att’y Gen. of Tex., 215 S.W.3d at 915-16). The trial court’s

appointment of a parenting facilitator “with[in] the confines of an enforcement

action” similarly is not a final appealable judgment because it does not dispose of

any claims; rather, among other things, it seeks to facilitate compliance with its

5 orders. See TEX. FAM. CODE § 153.6061(a) (providing that duties of parenting

facilitator may include “monitor[ing] compliance with court orders”).

Our decision in Cline is instructive. In Cline, appellant appealed from an order

determining child support arrearages and holding appellant in contempt for failure

to pay child support. 557 S.W.3d at 811-12. Explaining that decisions in contempt

proceedings cannot be reviewed on direct appeal, our court dismissed appellant’s

contempt-based complaints in the appeal for lack of jurisdiction. Id. at 812.

However, because appellant’s challenge to the arrearage judgment was unrelated to

the contempt proceeding, our court concluded that it had jurisdiction to consider the

issue and affirmed the arrearage portion of the order. Id. at 812-13; see also In re

E.H.G., No. 04-08-00579-CV, 2009 WL 1406246, at *5 (Tex. App.—San Antonio

May 20, 2009, no pet.) (mem. op.) (“If a motion to enforce includes a request for

both a contempt finding and a money judgment for child support arrearage, an

appellate court has jurisdiction to address the arrearage judgment because it is

unrelated to the contempt order.”).

We recognize that when a proceeding in a suit affecting the parent-child

relationship is statutorily designated as a new suit, a determination of that proceeding

is a final appealable order. See Bilyeu v. Bilyeu, 86 S.W.3d 278, 282 (Tex. App.—

Austin 2002, no pet.). But the applicable statutes in this case do not support

considering appellant’s motion to enforce to be the equivalent of a new suit.

6 Although the Family Code provides that a motion to enforce a divorce decree is the

equivalent of a new suit, there is no similar statute providing that a motion to enforce

a final order in a suit affecting the parent-child relationship is a new suit. See TEX.

FAM. CODE § 9.001(b) (providing that suit to enforce divorce decree is governed by

rules of civil procedure applicable to filing of original lawsuit). Motions to modify

in a suit affecting the parent-child relationship are considered new suits, but the

legislature did not statutorily designate motions to enforce an order in a suit affecting

the parent-child relationship as a new suit. See TEX. FAM. CODE §§ 156.003 (“A

party whose rights and duties may be affected by a suit for modification is entitled

to receive notice by service of citation.”); 156.004 (“The Texas Rules of Civil

Procedure applicable to the filing of an original lawsuit apply to a suit for

modification under this chapter.”). Unlike an enforcement order, the entry of a final

order in a modification proceeding concludes those proceedings and each subsequent

filing of a new motion to modify requires issuance of citation and observation of the

formalities of due process. See id.; Rose v. Rose, 117 S.W.3d 84, 88 (Tex. App.—

Waco 2003, no pet.) (distinguishing motions to enforce existing judgments from

motions to modify in suit affecting the parent-child relationship).

Accordingly, the clerk of this court sent appellant a notice of intent to dismiss

the appeal for want of jurisdiction. Appellant filed a response asserting that our court

has jurisdiction because (1) appellant “not only sought contempt, but also sought

7 judicial confirmation that he satisfied his child support obligation for May 2012;”

(2) “[u]nlike Cline, appellant does not raise the issues of contempt or child support

arrearages in this appeal, but only challenges the appointment of a parenting

facilitator;” and (3) “[t]he record is not clear whether the trial court appointed the

parenting facilitator in response to the contempt proceeding or the proceeding to

adjudicate child support arrearages.” Alternatively, appellant requests that, if we

conclude that the appointment of the parenting facilitator is not appealable, we

consider his appeal as a petition for writ of mandamus.

Appellant’s response fails to demonstrate that we have jurisdiction over the

appeal. We consider the response in two parts. First, appellant attempts to distinguish

Cline by asserting that his appeal does not raise issues of contempt or child support

arrearages and only challenges the appointment of a parenting facilitator. Even if

Cline could be distinguished on this basis, appellant still fails to provide any

authority demonstrating that the appointment of a parenting facilitator—the sole

issue in this attempted appeal— is an appealable issue. Second, appellant asserts that

the record is not clear as to whether the order was issued in response to a contempt

proceeding or a proceeding to adjudicate child support arrearages. Appellant notes

this ambiguity but makes no attempt to argue, much less demonstrate, that the

parenting facilitator was appointed in a proceeding to adjudicate child support

arrearages rather than contempt. Instead, appellant acknowledges that the

8 appointment appears “more logically related” to the contempt proceeding and that it

may be inferred that the trial court was attempting to facilitate compliance with its

order. Nevertheless, appellant argues that our Court has appellate jurisdiction

because “the record is not expressly clear under which portion of the case the

appointment of the parenting facilitator was made.” But we cannot assume our

jurisdiction, particularly when the record suggests that we lack jurisdiction.

Accordingly, we conclude that the appointment of the parenting facilitator is not

appealable and that we lack jurisdiction over the appeal.

Although we lack appellate jurisdiction to review the appointment of the

parenting facilitator, we grant appellant’s alternative request that we consider the

appeal as a petition for writ of mandamus. See Jones v. Brelsford, 390 S.W.3d 486,

497 n.7 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (“[I]n an appropriate case,

we may treat an appeal as a petition for writ of mandamus and an appellant who

specifically requests that [the] appeal be treated as a mandamus petition invokes this

Court’s original jurisdiction.”). Considering the appeal as a petition for writ of

mandamus, we deny the petition for the reasons discussed below.

Standard of Review

Most orders arising from a suit affecting the parent-child relationship will not

be disturbed on appeal unless the complaining party can demonstrate a clear abuse

of discretion. In re C.A.M.M., 243 S.W.3d 211, 214 (Tex. App.—Houston [14th

9 Dist.] 2007, pet. denied). Generally, a trial court abuses its discretion by acting

arbitrarily, unreasonably, or without reference to any guiding rules or principles. In

re R.T.K., 324 S.W.3d 896, 899 (Tex. App.—Houston [14th Dist.] 2010, pet.

denied). The failure to analyze or apply the law correctly also constitutes an abuse

of discretion. In re C.A.M.M., 243 S.W.3d at 215.

Whether a court has subject-matter jurisdiction is a question of law that we

review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004).

Discussion

The underlying case is a suit affecting the parent-child relationship, over

which the trial court, after rendering a final order, retains continuing, exclusive

jurisdiction over matters related to the child. See TEX. FAM. CODE §§ 101.032(a)

(defining “Suit affecting the parent-child relationship” as suit requesting

conservatorship, access to or support of child, or establishment or termination of

parent-child relationship), 155.001(a) (with certain exceptions not applicable to this

case, court acquires continuing, exclusive jurisdiction over suit affecting parent-

child relationship matters on rendition of final order), 155.002 (court with

continuing, exclusive jurisdiction retains jurisdiction over parties and suit affecting

parent-child relationship matters). There is no dispute that the trial court was the

10 family court of continuing jurisdiction—the court rendered the final order and

thereby retained jurisdiction to enforce the provisions of the order.

Section 153.6051 of the Texas Family Code governs the appointment of a

parenting facilitator. Section 153.6051(a) provides that “[i]n a suit affecting the

parent-child relationship, the court may, on its own motion or on agreement of the

parties, appoint a parenting facilitator . . . .” TEX. FAM. CODE § 153.6051(a). Section

153.6051(b) provides that

The court may not appoint a parenting facilitator unless, after notice and hearing, the court makes a specific finding that: (1) the case is a high-conflict case or there is good cause shown for the appointment of a parenting facilitator and the appointment is in the best interest of any minor child in the suit; and (2) the person appointed has the minimum qualifications required by Section 153.6101, as documented by the person.

TEX. FAM. CODE § 153.6051(b).

On appeal, appellant challenges the trial court’s appointment of the parenting

facilitator as (1) being outside of a “suit affecting the parent-child relationship” and

(2) failing to provide notice. We address these challenges below.

A. Trial Court’s Authority to Appoint Parenting Facilitator

Appellant argues that the appointment of the parenting facilitator was not part

of a suit affecting the parent-child relationship. Specifically, appellant asserts that

“[t]he trial court erred in appointing a parenting facilitator with[in] the confines of

11 an enforcement action” because his enforcement action did not affect the parent-

child relationship; rather, according to appellant, it sought to enforce the provisions

of an existing court order in a suit to modify the parent-child relationship.

In his motion to modify, appellant asserted that he “filed the enforcement suit

under Chapter 157, Texas Family Code, which is not, in and of itself, a suit affecting

the parent-child relationship, but rather, is merely a suit to enforce prior orders of

the Court.” Appellant further asserted that “[w]hile the underlying order [he] sought

to enforce was within a suit affecting the parent-child relationship, the instant

enforcement action is not, and therefore, the Court cannot sua sponte appoint a

parenting facilitator.” We disagree with appellant’s arguments that the enforcement

action was outside of the suit affecting the parent-child relationship.

The applicable statutes demonstrate that an action to enforce under Chapter

157 is filed within the suit affecting the parent-child relationship. Chapter 157’s

enforcement provisions are located within Title 5(b) of the Family Code, which

governs suits affecting the parent-child relationship. Section 157.001 of the Family

Code authorizes the filing of a motion for enforcement of a final order in a suit

affecting the parent-child relationship. TEX. FAM. CODE § 157.001(a) (“A motion for

enforcement as provided in this chapter may be filed to enforce any provision of a

temporary or final order rendered in a suit.”). The section further provides that the

court “may enforce by contempt any provision of a temporary or final order” and

12 requires that motions for enforcement be filed in the court of continuing, exclusive

jurisdiction. See id. at 157.001(b), (d). Consistent with these statutes, the record

demonstrates that appellant filed his motion to enforce in Cause No. 2012-CI-02330,

the same cause number as the underlying suit affecting the parent-child relationship.

Appellant cites Tucker v. Thomas, 419 S.W.3d 292 (Tex. 2013) for the general

proposition that modification and enforcement proceedings merit different

treatment. On this basis, appellant asserts that “Chapter 157 sets forth a specific

process and provides for specific remedies related to enforcement of court orders in

family cases; but, Chapter 157 does not incorporate, or even mention, any provision

of Chapter 153 (containing statutes for the appointment of a parenting facilitator).”

But both enforcement and modification proceedings fall under the chapter of the

Family Code governing suits affecting the parent-child relationship. Appellant

attempts to read into the statutes a limitation that a parenting facilitator cannot be

appointed in an enforcement proceeding and can only be appointed when a

modification of parental rights is sought. We decline to read such a limitation into

the statutes. Cases involving frequent actions to enforce prior orders demonstrate the

necessity of appointing a parenting facilitator to minimize future enforcement

actions. One of the statutory considerations in finding a “high-conflict case” for the

appointment of a parenting facilitator is whether the parties engage in an unusual

13 degree of “repetitiously resorting to the adjudicative process.” TEX. FAM. CODE §

153.601(2)(A).

Accordingly, the trial court was authorized to consider the appointment of a

parenting facilitator because the enforcement motion was filed within the original

suit affecting the parent-child relationship. Appellant also asserts that the trial court

lacked authority to appoint a parenting facilitator because “[n]either party sought

appointment of a parenting facilitator in any of their pleadings.” We reject this

argument because the statute expressly allows the trial court to appoint a parenting

facilitator “on its own motion.” TEX. FAM. CODE § 153.6051(a).

B. Notice Requirements

Appellant argues that even if his enforcement action is as a suit affecting the

parent-child relationship, the trial court’s appointment of a parenting facilitator did

not comply with notice and hearing requirements. The statute provides that a court

“may not appoint a parenting facilitator unless, after notice and hearing, the court

makes a specific finding that: (1) the case is a high-conflict case or there is good

cause shown for the appointment of a parenting facilitator and the appointment is in

the best interest of any minor child in the suit; and (2) the person appointed has the

minimum qualifications required by Section 153.6101, as documented by the

person.” TEX. FAM. CODE § 153.6051(b). Appellant does not dispute the trial court’s

findings that the case is a high-conflict case and that the appointed parenting

14 facilitator meets the required qualifications; instead, appellant asserts that notice was

insufficient for the trial court to appoint the parenting facilitator. Specifically,

appellant asserts that “[t]he record lacks any indication the court was contemplating

appointing a parenting facilitator” and the trial court’s order setting the June 5, 2018

hearing “was silent regarding anything to do with a parenting facilitator.”

The record demonstrates that the trial court informed appellant at the June 5,

2018 hearing on the enforcement motion that it was ordering the appointment of a

parenting facilitator. Appellant was represented at the hearing but did not object to

the appointment of a parenting facilitator. Nor did appellant object to the

appointment during the two weeks between the hearing and the trial court’s issuing

its written order on June 19, 2018. Instead, a month after the order was issued,

appellant filed a motion to modify/reform the judgment on July 19, 2018. The trial

court ordered the motion set for hearing on August 8, 2018, and subsequently denied

the motion by docket entry on August 18, 2018.

Based on the record, we conclude that appellant was notified at the hearing

that the court intended to order the appointment of a parenting facilitator. Appellant

was given a reasonable opportunity to object at the hearing—and prior to issuance

of the written order two weeks later—but failed to do so. But even if this notice was

insufficient to satisfy the requirement of Section 153.6051(b), any error is rendered

harmless by appellant’s filing of a motion to reconsider the appointment of the

15 parenting facilitator and the court’s consideration of the motion. See, e.g., Holland

v. Alker, No. 01-05-00666-CV, 2006 WL 1041785, at *5 (Tex. App.—Houston [1st

Dist.] Apr. 20, 2006, pet. denied) (“Assuming without deciding that notice and

hearing were required before the issuance of a turnover order, we hold that the trial

court did not violate appellants’ due process rights by ruling on appellees’

supplemental request for turnover because, among other things, the trial court held

a hearing on appellants’ motion to reconsider.”). Accordingly, the trial court

provided appellant with sufficient opportunity to voice his objections to the court’s

sua sponte appointment of a parenting facilitator.

Conclusion

For the foregoing reasons, we dismiss appellant’s appeal of the order

appointing a parenting facilitator for want of jurisdiction. Considering the appeal as

a petition for writ of mandamus, we deny the petition.

Sarah Beth Landau Justice

Panel consists of Justices Lloyd, Landau and Countiss.