in the Interest of S.J.G. and J.O.G., Children

Opinion

AFFIRM; and Opinion Filed April 9, 2015.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01351-CV

IN THE INTEREST OF S.J.G. AND J.O.G., CHILDREN

On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-12-15268

MEMORANDUM OPINION Before Justices Francis, Evans, and Stoddart Opinion by Justice Stoddart This appeal arises from a petition to modify a parent-child relationship. In three issues,

the father, Charles Joaquin Greenwald, argues the trial court erred by (1) denying a motion to set

aside a Brazos County court’s order; (2) ordering Greenwald to pay $15,404.24 in attorney’s fees

to counsel for the mother, Erin Tullos; and (3) failing to contact an Oklahoma court regarding

child custody. We affirm the trial court’s order.

FACTUAL BACKGROUND

In 2006, a Brazos County court entered a final decree of divorce for Greenwald and

Tullos, appointing them joint managing conservators of their children, and granting Tullos the

right to designate the children’s primary residence. The divorce decree also defined custody

rights and ordered Greenwald to pay child support. Tullos re-married the same year and moved

to Oklahoma in 2007, taking the children with her. In 2011, Greenwald moved to Dallas County. He subsequently filed two motions in the

Brazos court: a “Petition to Modify the Parent-Child Relationship” and a “Motion to Transfer”

venue to Dallas County. Tullos responded by filing a “Request for Court to Decline Jurisdiction

and Original Answer” in the Brazos court. In her motion, Tullos argued Texas was an

inconvenient forum to make a custody determination because she resided with the children in

Oklahoma. Tullos requested the Brazos court decline jurisdiction in favor of Oklahoma and

deny Greenwald’s request to transfer venue to Dallas County.

The Brazos court held a hearing on the transfer issues. On April 5, 2012, it signed an

order transferring the issue of child support to Dallas County while staying the custody issues on

the condition the parties file a custody suit in Oklahoma. The Brazos court’s order stated it

would transfer custody issues to Oklahoma when an Oklahoma court assumed jurisdiction. In

July 2012, Tullos filed a “Notice of Request to Register Foreign Order, Application to Assume

Jurisdiction and Motion to Modify” in Oklahoma. The parties agree at the time of this appeal the

Oklahoma court has not assumed jurisdiction over child custody.

In April 2012, Greenwald filed a motion to set aside the Brazos court’s April 5, 2012

order with the Dallas County court (Dallas Court) where the Brazos court transferred the child

support issue. In November 2012, the Dallas Court denied the motion. From January to July

2013, the parties litigated the issue of child support in the Dallas Court. In August 2013, the

Dallas Court issued an order modifying child support and awarding $15,404.24 to Tullos’s

counsel for reasonable and necessary attorney’s fees.

LAW AND ANALYSIS

A. Motion to Set Aside Brazos Court’s April 5, 2012 Order

In his first issue, Greenwald contends the Dallas Court erred by not using its plenary

power to set aside the Brazos court’s April 5, 2012 order. Greenwald argues the Brazos court

–2– lacked subject matter jurisdiction to retain the custody issues and make a forum determination

because the Brazos court had a ministerial duty to transfer the entire case—including child

custody issues—to Dallas County pursuant to a mandatory venue provision. See TEX. FAM.

CODE ANN. §§ 152.207, 155.301(a) (West 2014). Therefore, Greenwald contends, the portion of

the order retaining and staying the custody issues and declining jurisdiction on the condition the

parties file a custody suit in Oklahoma is void.

“Unless a judgment of a court of general jurisdiction is void, it is not subject to collateral

attack in another court of equal jurisdiction.” Browning v. Placke, 698 S.W.2d 362, 363 (Tex.

1985). As courts of general and equal jurisdiction in family law matters, the Dallas Court lacks

authority to set aside the Brazos court’s order unless the order is void. See TEX. GOV’T CODE

ANN. § 25.0232(a); see also Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010).

An order is void when the issuing court lacked jurisdiction over the parties or subject matter,

jurisdiction to enter the order, or capacity to act as a court. Id.

The record indicates, and the parties do not dispute, the Brazos court had jurisdiction over

the parties, jurisdiction to enter the order, and capacity to act as a court at the time it signed the

April 5, 2012 order. Greenwald only argues the Brazos court lacked subject matter jurisdiction

to enter its April 5, 2012 order.

A trial court’s subject matter jurisdiction over an initial child custody suit is governed by

section 152.201 of the Texas Family Code. Under that section, a Texas court has jurisdiction

over a suit if the child lived in Texas with a parent for at least six consecutive months

immediately before the commencement of the proceeding. See TEX. FAM. CODE ANN.

§ 152.201(a)(1); In re A.K.A., No. 05–13–00640–CV, 2014 WL 3845776, at *2 (Tex. App.—

Dallas Aug. 6, 2014, pet. denied) (citing TEX. FAM. CODE ANN. § 152.201(a)(1) and In re

Marsalis, 338 S.W.3d 131, 135 (Tex. App.—Texarkana 2011, orig. proceeding)). Section

–3– 152.202 of the family code grants a Texas court “which has made a[n initial] child custody

determination” exclusive, continuing jurisdiction over custody until a Texas court or a court of

another state determines one or more conditions described in section 152.202 subsection (a)(1) or

(a)(2) were triggered. TEX. FAM. CODE ANN. § 152.202(a)(1)–(2).

The Brazos court stated in the parties’ divorce decree, and the parties do not dispute, at

the time the original custody suit was filed, the court had jurisdiction over the parties; Tullos had

been a domiciliary of Texas for the preceding six-month period and a resident of Brazos county

for the preceding ninety-day period, and all persons entitled to citation were properly cited.

Accordingly, the Brazos court had initial jurisdiction over child custody. See TEX. FAM. CODE

ANN. § 152.201(a)(1). Even after the parties left Brazos County, the record does not reflect a

Texas or out-of-state court made a determination that any conditions under the family code

section 152.202 subsections (a)(1) or (a)(2) were triggered. As a result, the Brazos court

maintained continuing, exclusive jurisdiction. We conclude the Brazos court had subject matter

jurisdiction over child custody at the time it issued the April 5, 2012 order.

Because the Brazos court had jurisdiction over the parties and subject matter, jurisdiction

to enter the April 5, 2012 order, and capacity to act as a court, the Brazos court’s order is not

void. See Joachim, 315 S.W.3d at 863. Therefore, Greenwald’s motion to set aside the April 5,

2012 order constituted an impermissible collateral attack. See id. We conclude the Dallas Court

lacked jurisdiction to review the Brazos court’s order and did not err by denying the motion to

set the order aside.

We overrule Greenwald’s first issue.

B. Attorney’s Fees

In his second issue, Greenwald argues the Dallas Court erred by ordering him to pay

$15,404.24 in attorney’s fees to Tullos’s counsel. Greenwald contends that section 156.005 of

–4– the family code is the only statute expressly authorizing a trial court to award attorney’s fees in a

non-enforcement modification suit, and section 156.005 does not authorize an award of

attorney’s fees against a party whose actions in the trial court have merit. Therefore, Greenwald

argues because his actions in the Dallas Court had merit, the court erred by ordering him to pay

the attorney’s fees.

There are two statutory provisions authorizing attorney’s fees in modification suits. See

TEX. FAM. CODE ANN. §§ 156.005, 106.002; see also Tucker v. Thomas, 419 S.W.3d 292, 296–

97 (Tex. 2013). Section 156.005 exclusively applies to non-enforcement modification suits. It

provides: “If the court finds that a suit for modification is filed frivolously or is designed to

harass a party, the court shall tax attorney’s fees as costs against the offending party.” TEX.

FAM. CODE ANN. § 156.005 (emphasis added). Section 106.002 affords trial courts general

discretion to award attorney’s fees in all suits affecting parent-child relationships, including

modification suits. It provides: “In a suit under this title, the court may render judgment for

reasonable attorney’s fees . . . to be paid directly to an attorney.” Id. § 106.002(a) (emphasis

added); see also Tucker, 419 S.W.3d at 296.

The Dallas Court’s order awarding attorney’s fees indicates it awarded fees pursuant to

section 106.002, not section 156.005. The Dallas Court did not tax attorney’s fees as costs, but

ordered Greenwald to pay attorney’s fees directly to Tullo’s counsel as authorized by section

106.002. The order states: “[Tullo’s counsel] may enforce this judgment . . . by any means

available for the enforcement of a judgment for debt[,]” which is the specific enforcement

mechanism for attorney’s fees awarded pursuant to section 106.002. TEX. FAM. CODE ANN.

§ 106.002(b); see also Tucker, 419 S.W.3d at 297. Moreover, in its findings of fact and

conclusions of law, the Dallas Court found there was “good cause” to award attorney’s fees “due

to [Greenwald’s] actions” but did not find Greenwald’s actions were frivolous or designed to

–5– harass Tullos. In his brief, Greenwald acknowledges section 106.002 but makes no argument

why it should not apply or how an attorney’s fee award pursuant to that section would constitute

error in this case. Accordingly, because a court has discretion to award attorney’s fees under

section 106.002, and Greenwald did not explain how the Dallas Court allegedly erred by doing

so, we conclude the court did not err by awarding attorney’s fees to Tullos’s counsel. See

Tucker, 419 S.W.3d at 296 (citing Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002)).

We overrule Greenwald’s second issue.

C. Communication with the Oklahoma Court

In Greenwald’s third issue, he contends the Dallas Court abused its discretion by not

communicating with the Oklahoma court. He argues the Uniform Child Custody Jurisdiction

and Enforcement Act (UCCJEA)—codified in chapter 152 of the family code—required the

Dallas Court to contact the Oklahoma court to (1) inform the court of simultaneous proceedings

and (2) request the Oklahoma court hold its child custody proceeding in abeyance until the

Dallas Court conducted a hearing to determine whether it had jurisdiction over the proceeding.

See Tex. FAM. CODE ANN. §152.110(d). Section 152.110(d) of the Texas Family Code provides:

If proceedings involving the same parties are pending simultaneously in a court of this state and a court of another state, the court of this state shall inform the other court of the simultaneous proceedings. The court of this state shall request that the other court hold the proceeding in that court in abeyance until the court in this state conducts a hearing to determine whether the court has jurisdiction over the proceeding. Id.

Greenwald concedes in his brief the UCCJEA was intended to discourage the use of the

interstate system to continue controversies over child custody and to avoid relitigation over

custody determinations. The language in section 152.110(d) concerning “simultaneous

proceedings” refers to proceedings arising out of the UCCJEA, or custody proceedings. See id.

§§ 152.110(b), 152.206. Because the proceeding pending in the Dallas Court concerned child

–6– support and not child custody, the UCCJEA is inapplicable. Accordingly, the Dallas Court did

not err by failing to communicate with the Oklahoma court.

We overrule Greenwald’s third issue.

CONCLUSION

We affirm the Dallas Court’s order granting modification of prior orders, dated August

29, 2013.

/Craig Stoddart/ CRAIG STODDART JUSTICE

131351F.P05

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

IN THE INTEREST OF S.J.G. AND J.O.G., On Appeal from the 302nd Judicial District CHILDREN Court, Dallas County, Texas Trial Court Cause No. DF-12-15268. No. 05-13-01351-CV Opinion delivered by Justice Stoddart. Justices Francis and Evans participating.

In accordance with this Court’s opinion of this date, the trial court’s August 29, 2013 order granting modification of prior orders is AFFIRMED.

It is ORDERED that Erin Tullos recover her costs of this appeal from Charles Joaquin Greenwald.

Judgment entered this 9th day of April, 2015.

–8–