in the Interest of L.A.F.

CourtCourt of Appeals of Texas
DecidedJuly 7, 2015
Docket05-12-00141-CV
StatusPublished

This text of in the Interest of L.A.F. (in the Interest of L.A.F.) 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 L.A.F., (Tex. Ct. App. 2015).

Opinion

Affirmed and Opinion Filed July 7, 2015.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00141-CV

IN THE INTEREST OF L.A.F.

On Appeal from the 196th District Court Hunt County, Texas Trial Court Cause No. 773788

MEMORANDUM OPINION Before Justices Lang, Brown, and Whitehill Opinion by Justice Lang Amber Etta Bumpus f/k/a Amber Etta Runnells, pro se, appeals the trial court’s February

19, 2009 final order in the suit affecting the parent-child relationship, December 15, 2011 final

order on motion to modify in the suit affecting the parent-child relationship, and December 15,

2011 protective order. In three issues, she argues: (1) the trial court erred when it signed the

February 19, 2009 final order in the suit affecting the parent-child relationship because she was

not properly served with Brent Wade Fitzgerald’s original petition, resulting in a denial of due

process; (2) the evidence was legally and factually insufficient to support the finding that a

change in custody was in the best interests of the child as set forth in the December 15, 2011

final order on motion to modify in the suit affecting the parent-child relationship; and (3) the

evidence is legally and factually insufficient to support the trial court’s finding of family violence as set forth in its December 15, 2011 protective order. Fitzgerald did not file a brief in

this appeal.

We conclude the that we do not have jurisdiction to review Bumpus’s first issue, arguing

the trial court erred when it signed the February 19, 2009 final order in the suit affecting the

parent-child relationship. Also, we conclude the evidence is legally and factually sufficient to

support the trial court’s December 15, 2011 final order on the motion to modify in the suit

affecting the parent-child relationship and December 15, 2011 protective order. The trial court’s

December 15, 2011 final order on the motion to modify in the suit affecting the parent-child

relationship and December 15, 2011 protective order are affirmed. The law is well-settled in this

matter, therefore we issue this memorandum opinion. See TEX. R. CIV. P. 47.1.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 19, 2009, the trial court signed a final order in the suit affecting the parent-

child relationship and adjudication of parentage. In that order, the trial court appointed Bumpus

and Fitzgerald joint managing conservators of L.A.F. and ordered expanded standard possession.

On September 15, 2010, Fitzgerald filed his original petition to modify the parent-child

relationship, seeking to be appointed sole managing conservator with exclusive right to establish

the domicile of L.A.F. Bumpus answered, generally denying the allegations, and filed a counter-

petition. In Bumpus’s first amended counter-petition, she also sought to be appointed sole

managing conservator of L.A.F. with the exclusive right to designate the primary residence of

L.A.F. On November 2, 2010, Fitzgerald filed an application for a protective order, attaching a

copy of a magistrate’s emergency protective order and complaint of probable cause alleging the

criminal offense of assault involving family violence against Bumpus.

After a combined trial on the original petition to modify the parent-child relationship and

hearing on the application for a protective order, the trial court appointed Fitzgerald sole

–2– managing conservator and Bumpus possessory conservator. The trial court permanently

enjoined, in part, Bumpus from permitting L.A.F. access to George Bumpus, Bumpus’s husband,

and three other named individuals, permitting George Bumpus to be within 500 feet of L.A.F., or

permitting George Bumpus to be present in the residence or any other location where L.A.F. is

located. Also, the trial court found that the presumption in favor of a standard possession order

had been rebutted and ordered that Bumpus had the right to possession on alternating weekends,

subject to the permanent injunction. In addition, the trial court granted the application for a

protective order, finding Bumpus committed family violence and family violence was likely to

occur in the future.

II. LACK OF NOTICE

In issue one, Bumpus argues the trial court erred when it signed the February 19, 2009

final order in the suit affecting the parent-child relationship because she was not properly served

with Fitzgerald’s original petition, resulting in a denial of due process. Specifically, she argues,

“[t]his judgment should not have been issued back in 2009 and the judge erred by not making

note that no waiver of citation had been filed and in [Fitzgerald’s] [January 28, 2009] Original

Petition [in Suit Affecting the Parent-Child Relationship and to Adjudicate Parentage] in the

section for person entitled to citation it states that, ‘The mother of the child the subject of this

suit is Amber Etta Runnells. No service is necessary at this time.’”

A. Applicable Law

Section 156.004 of the Texas Family Code provides that, in a suit to modify an order

affecting the parent-child relationship, “[t]he Texas Rules of Civil Procedure applicable to the

filing of an original lawsuit apply.” TEX. FAM. CODE ANN. § 156.004 (West 2014); In re Honea,

415 S.W.3d 888, 890 (Tex. App.—Eastland 2013, no pet.). As a result, an original petition to

modify an order affecting the parent-child relationship is a new cause of action. In re L.N.E.,

–3– No. 05-07-01712-CV, 2009 WL 280472, *2 (Tex. App.—Dallas Feb. 6, 2009, no pet.) (mem.

op.); In re Honea, 415 S.W.3d at 890–91; Bilyeu v. Bilyeu, 86 S.W.3d 278, 280 (Tex. App.—

Austin 2002, no pet.).

Appellate jurisdiction is invoked upon the timely filing of a notice of appeal from a final

judgment. Lehman v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Lopez v. Lopez, No. 05-

13-00716-CV, 2014 WL 4065609, *1 (Tex. App.—Dallas Aug. 18, 2014, no pet.) (mem. op.);

Garza v. Hibernia Nat'l Bank, 227 S.W.3d 233, 233 (Tex. App.—Houston [1st Dist.] 2007, no

pet.). Generally, the deadline to file a notice of appeal runs from the date of judgment. See TEX.

R. APP. P. 26.1, 4.2 (providing that if notice of judgment is not received within twenty days after

judgment is signed, deadline runs from date notice is received, but no later than ninety days from

signing of judgment); Lopez, 2014 WL 4065609, at *1. Rule 26.1 provides four time frames for

filing a notice of appeal. See TEX. R. APP. P. 26.1; Lopez, 2014 WL 4065609, at *1. These time

frames are based on the type of judgment or order being appealed and range from twenty days in

an accelerated appeal to six months in a restricted appeal. See TEX. R. APP. P. 26.1; Lopez, 2014

WL 4065609, at *1. Additionally, rule 26.3 provides for one fifteen-day extension of time. See

TEX. R. APP. P. 26.3; Lopez, 2014 WL 4065609, at *1.

B. Application of the Law to the Facts

The record shows that on January 28, 2009, Fitzgerald filed his original petition in the

suit affecting the parent-child relationship and the trial court entered a final judgment in that suit

on February 19, 2009.

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