In the Interest of E.W.N.

482 S.W.3d 150, 2015 Tex. App. LEXIS 9139, 2015 WL 5047612
CourtCourt of Appeals of Texas
DecidedAugust 26, 2015
DocketNo. 08-13-00345-CV
StatusPublished
Cited by10 cases

This text of 482 S.W.3d 150 (In the Interest of E.W.N.) 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 the Interest of E.W.N., 482 S.W.3d 150, 2015 Tex. App. LEXIS 9139, 2015 WL 5047612 (Tex. Ct. App. 2015).

Opinion

OPINION

ANN CRAWFORD McCLURE, Chief Justice

Wesley Bruce Nichol appeals from an order 'dismissing his modification suit. The subject matter of this appeal is' ripe for discussion and a hot button topic among family law practitioners. What remedy does a litigant have when circumstances change while an order in a suit affecting-the parent child relationship is on appeal? The Téxas Family Code is a textbook of remedies, but they are not exclusive. Family law practitioners have routinely looked outside the box to fashion creative remedies.' In fact for decades, the word “reimbursement” did not even appear in the Family Code, but it was pled, tried, and awarded. “Fraud on the community estate” was litigated long before it was first mentioned in the Family Code. Common sehse dictates that'circumstances in family law cases may Change dramatically while the case flies through — or lingers in — appellate orbit.

FACTUAL SUMMARY

On September 27, 2011, the trial court entered an order appointing Wesley Bruce Nichol (Father) and Suhaila Saud Nichol (Mother) joint managing conservators of E.W.N. and ordering Father to pay child support in the amount of $1,500 per month. Under the order, Mother had the exclusive right' to designate the child’s residence. On December 20, 2011, Father timely filed his notice of appeal in the trial court and the Second Court of Appeals. The Second Court of Appeals transferred the ease on January. 24, 2012 to .the Seventh Court of [152]*152Appeals where it was docketed .under cause number 07-12-00035-CV.

On January 12, 2012, while his appeal was still pending, Father filed a petition to modify the parent-child relationship seeking to reduce the child support ordered by the trial court less than four months earlier. On December 18, 2012, he filed a motion for temporary orders to reduce his child support obligation during the pen-dency of the modification suit, and the trial court set the hearing on the motion for January 2, 2013. Mother filed motions seeking continuance of the hearing and dismissal of the modification suit for lack of jurisdiction. Father later filed an amended petition to modify seeking to be granted the exclusive right to determine the primary residence of the child. The trial court dismissed without prejudice the first amended petition to modify because the Seventh Court of Appeals had exclusive “power” of the entire cause. Father appealed the dismissal order to the Second Court of Appeals, but the Supreme Court entered.a docket equalization order transferring the appeal to- this court. While the instant appeal was pending, the Amarillo Court .of Appeals issued an opinion and judgment affirming the trial court’s order dated September 27, 2011, including the trial court’s decision to grant Mother the exclusive right to determine the primary residence of the Child. See Nichol v. Nichol, No. 07-12-00035-CV, 2014 WL. 199652 (Tex.App.—Amarillo January 15, 2014, no pet.).

DISMISSAL OF PETITION TO MODIFY

In his sole issue for review, Father complains that the trial court erred by dismissing his petition to modify because that court had continuing, exclusive jurisdiction over matters affecting the parent-child relationship regardless of whether an appeal is pending. Mother responds that the trial court correctly dismissed the. suit because the Seventh Court of Appeals had jurisdiction over the order Father sought to challenge by means of his first amended petition to modify. ■ T-he weight of Texas jurisprudence agrees with Mother.1

The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction. Tex.R.App.P. 25.1(b). As a general rule, the appellate court acquires exclusive plenary jurisdiction over a cause once an appeal has been perfected and the trial court’s plenary power to perform certain acts after appeal has expired. Saudi v. Brieven, 176 S.W.3d 108, 114 (Tex.App.—Houston [1st Dist.] 2004, pet. denied), citing Robertson v. Ranger Insurance Company, 689 S.W.2d 209, 210 (Tex.1985); see Tex.R.Civ.P. 329b(d), (e) (granting trial court plenary power to perform certain acts after the appeal is perfected).

Father argues that the" trial court retained continuing, exclusive "jurisdiction of the September 27, 2011 order and could modify that order even while Father’s appeal was pending before the Seventh Court of Appeals. He relies on Sections 155.001, 155.002, 155.003, and 156.002 of the Texas Family Code in support of his argument. Section 155.001 provides that: “Except as otherwise provided by this section, a court acquires continuing, exclusive jurisdiction over the matters provided for by this title in connection with a child on the rendition of a final order.” TexFam. Code Ann. § 155.001(a)(West 2014). With certain exceptions inapplicable here, if a [153]*153court has acquired continuing, exclusive jurisdiction, no other Texas state court has jurisdiction of a suit with regard to that child. - . TexEam.Code Ann. § 155.001(c)(West 2014). Further, a court with continuing, exclusive jurisdiction retains jurisdiction of the parties and matters provided by Title 5. of the Family Code2 and it may exercise its jurisdiction to modify its order regarding managing conservatorship, possessory conservator-ship, possession of and access to the.child, and support of the child. Tex.Fam.Code Ann. §§ 155.002(a), 155.008(a) (West 2014). Section 156.002, entitled. “Who Can File”, provides that a party affected by an order may file a suit for modification in the court with continuing, exclusive jurisdiction. Tex.Fam.Code Ann. § 156.002 (West 2014). None of these sections addresses the impact of an appeal on the trial court’s authority to modify an existing order.

The Family Code contains specific provisions related to the right to appeal a final order, including a modification order, and the trial court’s authority to enter temporary orders during the pendency of an appeal. An appeal may be taken by any party to á suit from a final order rendered under Title 5, and an appeal from a final order “shall be as in civil cases generally under the Texas Rules of Appellate Procedure.” Tex.Eam.Code Ann. § 109.002(a), (b) (West 2014). Further, Section 109.002(c) provides that, an appeal from a final order, with or without a supersedeas bond, does not suspend the order unless suspension is ordered by the,trial, court. Tex.Fam.Code Ann. § 109.002(c) (West 2014). The appellate court,. on a proper showing, may permit the order to be suspended, unless the order provides for the termination of the parent-child relationship in a suit brought by the state or a political subdivision of the state permitted by law to bring the suit. Id.

[3] Of particular significance to the jurisdictional issue presented here, Section 109.001 expressly authorises the trial court to enter temporary orders during the pen-dency of an appeal. Tex.Fam.Code Ann. § 109.001 (West 2014). It provides:

(a) Not later than the 30th day after the date an appeal is perfected, on the

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Cite This Page — Counsel Stack

Bluebook (online)
482 S.W.3d 150, 2015 Tex. App. LEXIS 9139, 2015 WL 5047612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-ewn-texapp-2015.