in the Interest of K.S.W. and J.E.W., Children

• Court: Court of Appeals of Texas
• Decided: February 9, 2023
• Docket: 05-22-00672-CV
• Status: Published

Opinion

AFFIRM; and Opinion Filed February 9, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00672-CV

IN THE INTEREST OF K.S.W. AND J.E.W., CHILDREN

On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court Cause No. 91022

MEMORANDUM OPINION Before Justices Pedersen III, Goldstein, and Smith Opinion by Justice Smith Grandparents appeal from the trial court’s order denying their request to

register a foreign child custody determination. We affirm the trial court’s order.

Background

Grandparents are the maternal grandparents of minor children, K.S.W. and

J.E.W. In February 2016, a Utah district court signed a divorce decree awarding

joint legal custody of the minor children to their parents, Mother and Father.1 In

September 2017, the Utah court signed an order of stipulation, which, among other

1 Case No. 154401514, Fourth District Court of Utah County Provo Department, State of Utah. things, made adjustments to the minor children’s parent time and provided

Grandparents with grandparent time, the right to make decisions regarding the minor

children during grandparent time, and the right to receive information about and

access to the minor children. The order also obliged Grandparents to pay one-third

of the costs for the minor children’s assessments and/or evaluations.

Grandparents subsequently filed a petition to modify. In December 2021, the

Utah court dismissed the petition, finding it no longer had exclusive or continuing

jurisdiction because Grandparents, the minor children, and Father no longer resided

in Utah. The order also specifically noted that Mother’s parental rights had been

terminated in connection with a separate adoption case.

On April 5, 2022, Grandparents filed a request to register the divorce decree,

order of stipulation, and order dismissing their petition to modify with the Hunt

County District Clerk pursuant to section 152.305 of the Texas Family Code. The

request identified Father as the parent or person acting as a parent who has been

awarded custody or visitation in the child custody determination sought to be

registered. The request also included a declaration by Grandparent’s counsel stating

that, under penalty of perjury and to the best of his knowledge and belief, the

September 2017 order of stipulation had not been modified. Grandfather signed a

declaration under penalty of perjury that the foregoing was true and correct.

The Hunt County District Clerk sent a notice of registration to Father via

certified mail. Father filed a motion to decline the registration and requested a

–2– hearing to contest the validity of the child custody determination. Citing a

September 2018 adoption decree and findings of facts and conclusions of law, Father

asserted that “the child custody determination sought to be registered has been

vacated, stayed, or modified by a court having jurisdiction to do so.”

The trial court held a hearing on Father’s motion. The parties did not testify,

but Father offered into evidence the September 2018 adoption decree and findings

of fact and conclusions of law.2 The adoption decree, reciting that the court had

entered an order terminating Mother’s parental rights to the minor children in July

2018, ordered that the minor children were adopted by Father’s wife. The court’s

findings of fact and conclusions of law included the following finding:

The termination of parental rights associated with the adoption applies exclusively to the birth mother, [Mother], and has no effect on the rights and visitation time currently provided to her parents, [Grandparents], in Case No. 154401514, Fourth Judicial Court. This will not preclude the Petitioners herein or [Grandparents] from requesting a modification of the current visitation time in Case No. 154401514 based on a change of circumstances created by the termination of [Mother’s] parental rights herein.

After hearing the argument of counsel, the Hunt County trial court took the matter

under advisement. On June 16, 2022, the court entered an order denying the

registration of foreign child custody determination. This appeal followed.

2 Case No. 172400229-AD, Fourth Judicial District Court Utah County, State of Utah. –3– Registration of a Foreign Child Custody Determination

In their sole issue, Grandparents contend the trial court abused its discretion

in denying their request to register the child custody determination. They assert that

Father failed to establish that the adoption decree and findings of fact and

conclusions of law constituted a modification of the September 2017 order of

stipulation and, even if it did, the trial court simply should have included the

adoption decree and findings of fact and conclusions of law in the registration.

Texas Family Code section 152.305 provides the mechanism for registering a

child custody determination issued by a court of another state. TEX. FAM. CODE

ANN. § 152.305(a). A petitioner must send a request to the appropriate Texas state

court, along with (1) two copies (one certified) of the determination sought to be

registered; (2) a sworn statement that the determination has not been modified; and

(3) the name and address of the person seeking registration and any parent or person

who has been awarded custody or visitation in the determination sought to be

registered. Id.

Upon receiving the request, the Texas court files the determination as a

foreign judgment and provides notice and an opportunity to contest the validity of

the determination’s registration to the persons identified by the petitioner.

Id. § 152.305(b), (c). If a hearing is requested, the court must confirm the registered

determination unless the person contesting it establishes that (1) the issuing court

–4– did not have jurisdiction under subchapter C;3 (2) the determination sought to be

registered has been vacated, stayed, or modified by a court having jurisdiction to do

so; or (3) the person contesting registration was entitled to notice in the proceedings

before the court that issued the order for which registration is sought, but notice was

not given in accordance with the standards of section 152.108. Id. § 152.305(d).

When a trial court decides a matter involving both factual determinations and

legal conclusions, we review the decision for an abuse of discretion. Razo v. Vargas,

355 S.W.3d 866, 870 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see

also Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding)

(reviewing court may not substitute its judgment for trial court’s judgment in

resolving factual issues, but trial court has no discretion when “determining what the

law is or applying the law to the facts”). A trial court abuses its discretion when it

acts “without any reference to guiding rules or principles.” Razo, 355 S.W.3d at

870.

In a family law case, the traditional sufficiency standards of review overlap

the abuse of discretion standard. In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—

Dallas 2009, no pet.). To determine whether the trial court abused its discretion, we

consider whether the trial court (1) had sufficient information on which to exercise

its discretion, and (2) erred in exercising its discretion. Zeifman v. Michels, 212

3 Subchapter C addresses courts’ jurisdiction to make and modify child custody determinations. See FAM. §§ 152.201–152.210. –5– S.W.3d 582, 587–88 (Tex. App.—Austin 2006, pet. denied). We conduct the

applicable sufficiency review under the first prong. Id. We then determine whether,

based on the evidence, the trial court made a decision that was neither arbitrary nor

unreasonable. Id.

Grandparents first assert that Father failed to establish the child custody

determination they sought to register had been modified. Specifically, Grandparents

maintain that the adoption decree, as reflected in the findings of fact and conclusions

of law, did not modify their rights and visitation time under the order of stipulation.

Resolution of this issue requires statutory construction, a question of law that we

review de novo. See Yacopino v. Waters, No. 03-21-00529-CV, 2022 WL 3691675,

at *3 (Tex. App.—Austin Aug. 26, 2022, no pet.) (mem. op.) (citing City of Rockwall

v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008)). We ascertain and give effect to the

Legislature’s intent as expressed by the statute’s language. Id. (citing First Am. Title

Ins. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008)). “We use definitions prescribed

by the Legislature and any technical or particular meaning the words have acquired.”

Id. (citing City of Rockwall, 246 S.W.3d at 625). “Otherwise, we construe the

statute’s text according to its plain and common meaning, unless a contrary intention

is apparent from the context or such a construction leads to absurd results.” Id. We

“read the statute as a whole and interpret it to give effect to every part.” Id. (citations

omitted).

–6– Father challenged Grandparents’ proposed child custody determination,

arguing that it had been modified by the subsequent adoption decree. Chapter 152

defines a “modification” as “a child custody determination that changes, replaces,

supersedes, or is otherwise made after a previous determination concerning the same

child, whether or not it is made by the court that made the previous determination.”

FAM. § 152.102(12). Nothing in this broad definition or section 152.305 requires

that a modification to a child custody determination specifically affect the rights of

the party seeking to register the determination. Indeed, such a construction could

lead to absurd results. Section 152.305 provides that, once registered, a

determination is enforceable as of the date of registration in the same manner as a

determination issued by a Texas court. See id. § 152.305(c)(1). Accordingly, in this

case, registration of the determination as requested by Grandparents would

effectively invalidate the termination of Mother’s parental rights as well as the

adoption of the minor children by Father’s wife.

Father introduced into evidence an adoption decree, which clearly modified

the terms of the order of stipulation with respect to the parental rights to the minor

children. On this record, we conclude the trial court had sufficient information on

which to exercise its discretion and did not abuse its discretion in finding that Father

established that the child custody determination that Grandparents sought to register

had been modified for purposes of section 152.305.

–7– Grandparents next assert that the trial court nevertheless abused its discretion

by not including the adoption decree and the findings of fact and conclusions of law

in the child custody determination registration. Grandparents contend that they

made a trial amendment supporting the inclusion and the issue was tried by consent.

Texas Rule of Civil Procedure 66 authorizes a trial court to allow amendments

to a pleading and requires the court to do so if the amendment would serve the

presentation of the merits without prejudicing the opposing party’s action or defense

on the merits. TEX. R. CIV. P. 66. Under Rule 67, a trial court shall treat an issue as

having been raised by the pleadings if it is tried by express or implied consent of the

parties. TEX. R. CIV. P. 67. To determine whether an issue was tried by consent, the

trial court examines the record not for evidence of the issue, but rather for evidence

of trial of the issue. Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760,

771 (Tex. App.—Dallas 2005, pet. denied).

Grandparents assert their counsel’s statement that he “stipulate[d] that the

adoption record should be part of the order in this matter if the Court should register”

constituted a trial amendment.4 Grandparents also point to statements by both their

counsel and Father’s counsel indicating that Grandparents should have included the

4 According to Grandparents’ counsel, he had no access to the adoption order because it was under seal and filed in a different county. He and Grandparents, however, clearly had notice of both the termination of Mother’s parental rights and the minor children’s adoption prior to filing their request for registration because one of the orders they sought to register, the order denying their petition to modify, explicitly referred to both and the related cause number. –8– adoption decree and findings of fact and conclusions of law as part of the child

custody determination they sought to register.

As discussed above, however, a request for registration requires that the

petitioner provide the name and address of any parent or person acting as a parent

who has been awarded custody or visitation in the child custody determination and

the trial court then must provide notice to that parent or person. FAM. §

152.305(a)(3), (b)(2), (c). Here, there was no notice to Father’s wife, the adoptive

mother of the minor children, regarding the registration. Thus, even if Grandparents

made a trial amendment or the issue was tried by consent, we conclude the trial court

did not abuse its discretion in denying registration of a determination that included

the adoption decree and the findings of fact and conclusions of law.

Finally, Grandparents urge this Court to modify the trial court’s “judgment

. . . to reflect that the dismissal was without prejudice to refile.” The trial court’s

order denied the registration of the foreign child custody determination and all relief

requested by Grandparents. It did not recite that the denial was with prejudice or

otherwise constitute a dismissal with prejudice. “Where an order does not state that

the case is dismissed with prejudice, it is presumed that the dismissal is without

prejudice.” Emerald Waco Invs., Ltd. v. Petree, No. 05-15-00863-CV, 2016 WL

4010056, at *6 (Tex. App.—Dallas July 25, 2016, no pet.) (mem. op.) (quoting In

re Hughes, 770 S.W.2d 635, 637 (Tex. App.—Houston [1st Dist.] 1989, no writ)).

Accordingly, we conclude the trial court’s order was a dismissal without prejudice,

–9– having no preclusive effect in a future request to register the foreign child custody

determination.

Conclusion

We overrule Grandparent’s sole issue and affirm the trial court’s order

denying registration of foreign child custody determination.

/Craig Smith/ CRAIG SMITH JUSTICE 220672F.P05

–10– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF K.S.W. On Appeal from the 354th Judicial AND J.E.W., MINOR CHILDREN, District Court, Hunt County, Texas Trial Court Cause No. 91022. No. 05-22-00672-CV V. Opinion delivered by Justice Smith. Justices Pedersen, III and Goldstein participating.

In accordance with this Court’s opinion of this date, the trial court’s order denying registration of foreign child custody determination is AFFIRMED.

Judgment entered this 9th day of February 2023.

–11–