Lisa Renee Ward v. Virgil Brent Ward

• Court: Court of Appeals of Texas
• Decided: December 7, 2017
• Docket: 09-17-00024-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-17-00024-CV ________________

LISA RENEE WARD, Appellant

V.

VIRGIL BRENT WARD, Appellee __________________________________________________________________

On Appeal from the County Court at Law Liberty County, Texas Trial Cause No. CV1104837 __________________________________________________________________

MEMORANDUM OPINION

In this appeal of a suit affecting the parent-child relationship, appellant Lisa

Renee Ward argues that the County Court at Law: (1) lacked jurisdiction to modify

or enforce the divorce decree, (2) abused its discretion by retroactively modifying or

refusing to enforce the divorce decree, (3) abused its discretion by denying her

motion to enforce, and (4) the 75th District Court lacked jurisdiction to transfer the

case to the County Court at Law. We affirm the trial court’s judgment.

1 BACKGROUND

Appellee Virgil Brent Ward filed a petition for divorce from Lisa1 in the 253rd

District Court of Liberty County, Texas. The record reflects that after Lisa filed her

original answer, the trial court transferred the case to the 75th District Court. The

Honorable Mark Morefield, judge of the 75th District Court of Liberty County,

signed a final decree of divorce between Lisa and Virgil on August 15, 2012, in

which he appointed Lisa as the joint managing (“primary”) conservator with the right

to primary possession of the parties’ child, entered a standard possession order,

ordered Virgil to pay child support, required Lisa to obtain health insurance for the

child, required Virgil to pay maintenance to Lisa, and divided the marital estate.

On January 7, 2013, Lisa filed a motion to clarify. In that motion, Lisa

contended that Virgil had refused to equally split the parties’ tax refund for 2011

because he refused to sign the check the IRS issued correcting Lisa’s surname to her

maiden name; failed to transfer ownership of an Edward Jones retirement account to

Lisa; failed to provide Lisa information necessary to change the name on the note

for the loan of a vehicle; failed to pay for horse feed; failed to pay child support

“directly to Texas Child Support Disbursement Unit[;]”and might force Lisa to leave

1 Because the parties share a surname, we will refer to appellant and appellee by their first names for clarity. 2 the homestead by refusing to stay current on mortgage payments. Lisa pleaded that

although she has told the child to spend time with Virgil, the child refused to do so.

On May 27, 2014, Virgil filed a petition to modify and order setting hearing

for temporary orders, in which he asserted that, due to changed circumstances, the

court-ordered child support payments were no longer in compliance with the

guidelines in chapter 154 of the Family Code, and Virgil requested that the trial court

decrease the payments and that “any decrease be made retroactive to the earlier of

the time of service of citation on [Lisa] or the appearance of [Lisa] in this

modification action.” In addition, Virgil asserted that spousal maintenance should

be either terminated or decreased, and he requested that any decrease be made

retroactive. Virgil asked that the trial court enter temporary orders in accordance

with his requests.

The 75th District Court’s coordinator scheduled a hearing for temporary

orders on July 1, 2014. The 75th District Court’s docket reflects that on July 1, 2014,

a mediation order and Rule 11 agreement were entered. On September 18, 2014,

Virgil filed a motion for enforcement of order by contempt and order to appear. In

the motion, Virgil asserted that Lisa had failed to surrender the child to him for

visitation on three occasions and requested that Lisa be held in contempt, jailed,

placed on community supervision, or fined for each violation, and Virgil stated that

3 he believes Lisa will “continue to fail to comply with the order.” Virgil also alleged

that Lisa had engaged in parental alienation because Lisa had “harmed or attempted

to break the bond” between the child and Virgil. On September 22, 2014, the judge

of the 75th District Court signed an “Order Assigning Case[,]” in which it stated that

the cause “is hereby assigned to the County Court at Law of Liberty County, Texas.

The County Court at Law will have jurisdiction over this cause for all purposes.”

On November 16, 2015, Lisa filed her first supplemental motion to enforce

and for attorney’s fees and expenses. In her motion, Lisa alleged that Virgil had

failed to transfer ownership of an Edward Jones account to Lisa as required by the

divorce decree; failed to pay $2200 he owed Lisa as part of an agreed settlement;

owed Lisa child support and spousal support in the amount of $8966.14; and was

delinquent in making required payments on a Discover card that was issued to Lisa.

Lisa also alleged harassing or improper conduct by Virgil.

On December 21, 2015, the County Court at Law, Honorable Thomas

Chambers presiding, conducted a hearing on Virgil’s motion to modify and motion

for enforcement, as well as Lisa’s supplemental motion to enforce and motion to

clarify. At the hearing, Virgil testified that he had not been able to visit the child

since August 2012, when the child was fifteen years old. According to Virgil, he had

a “great” relationship before the divorce, and he does not know why the child no

4 longer comes to visit him. Virgil testified that he tried to exercise visitation, but the

“gates were locked[]” and “[t]hey wouldn’t answer the phones[.]” Virgil explained

that the child will not respond to his text messages except to say “thank you” if he

congratulates the child about something. According to Virgil, he communicates with

the child via Facebook and email, but not very frequently. Virgil testified that he

believes that if the child were to have a relationship with him, Lisa would “mentally

destroy” the child. Virgil testified that the situation has destroyed him.

According to Virgil, he mailed child support payments of $1570 per month,

as well as alimony, directly to Lisa until January of 2013, when he began making

child support payments through the Attorney General, and the Attorney General has

not properly credited him for the prior payments made to Lisa. When the trial court

asked Virgil what he wanted the court to do, Virgil stated that he wanted to settle the

amounts of money, but opined that the trial court could not change his lack of

relationship with his daughter. At the conclusion of the hearing, the trial court denied

Virgil’s motion for contempt for denial of visitation and found that Virgil owed no

child support arrearage or spousal support arrearage. The trial court also found that

Virgil had no other financial arrearage regarding payments ordered in the divorce

decree. In addition, the trial court granted Virgil’s motion to modify the amount of

child support to $500 per month, beginning January 1, 2016, and continuing until

5 the child graduates from high school. The trial court denied Virgil’s motion to

modify the amount of spousal support and denied the motions to modify possession

and access because the child had reached eighteen years of age.

The trial court’s docket reflects that on February 11, 2016, the trial court

called the case, and only Virgil’s counsel was noted to be present. On the same date,

the trial court signed an order in a suit affecting the parent-child relationship. In the

order, the trial court denied Lisa’s motion to clarify, denied Lisa’s motion for

enforcement and first supplemental motion to enforce, denied Virgil’s motion for

enforcement of order by contempt, and granted Virgil’s petition to modify. The trial

court found that Virgil owed no child support arrearage, no spousal maintenance

arrearage, no money regarding the Edward Jones retirement account, no debt for

horse feed, and no debt for the Discover Card. In its order, the trial court found that

“the material allegations contained in the Petition to Modify are true and the

modification is in the best interest of the child.” Additionally, the trial court ordered

Virgil to pay child support of $500 per month to Lisa until the child graduates from

high school, and he ordered the Attorney General to return to Virgil any monies held

to satisfy arrearages. Furthermore, the trial court ordered that all terms of the divorce

decree not specifically modified or addressed in the order would remain in effect.

6 The trial court signed the order on February 11, 2016, and wrote underneath the date

that the order is “effective 12-21-15[.]”

On June 21, 2016, Lisa filed an expedited motion to set aside the trial court’s

order due to the County Court at Law’s alleged lack of jurisdiction. In that pleading,

Lisa alleged that her attorney did not receive notice of the February 11 hearing for

entry of the court’s judgment of December 21, 2015, nor did her attorney receive

notice that the trial court had signed a final, appealable order. According to Lisa, the

“transfer” of the petition to modify to the County Court at Law was issued sua

sponte, and the County Court at law therefore lacked jurisdiction to enter any orders.

As support for her jurisdictional argument, Lisa cited sections 155.001, 155.002, and

155.202(b) of the Texas Family Code. Lisa argued that a transfer from a court with

continuing, exclusive jurisdiction to another court requires a written motion, hearing,

and order, and that since none existed, the County Court at Law lacked jurisdiction.

On November 14, 2016, Lisa filed a motion to enforce, in which she alleged

that (1) attempted mediation has failed, (2) Virgil owed her $13,000 plus attorney’s

fees and costs, and (3) Virgil had only sporadically paid the mortgage and had failed

to pay spousal support. On January 4, 2017, the trial court held a hearing on Lisa’s

motion to set aside the order and her motion to enforce, at which counsel for both

sides argued the motions and no testimony was offered. The trial court orally denied

7 the motion to enforce and the motion to set aside. On the same date, the trial court

signed a handwritten order denying Lisa’s expedited motion to set aside, as well as

“all motions to [e]nforce[.]” Lisa then filed a notice of appeal, which stated that she

was appealing the trial court’s rulings in its order of January 4, 2017, denying her

expedited motion to set aside due to lack of jurisdiction and her November 2016

motion to enforce.

ISSUES ONE AND FOUR

In issue one, Lisa argues that the County Court at Law lacked jurisdiction to

enter orders modifying or enforcing the divorce decree. In issue four, Lisa contends

that the District Court lacked jurisdiction to transfer the case to the County Court at

Law, and that the County Court at Law erred by refusing to declare its own orders

void. We address issues one and four together.

Citing Chapter 155 of the Texas Family Code, Lisa argues that the 75th

District Court “acquired and retained continuing, exclusive jurisdiction over the

Final Decree.” Section 155.001 of the Family Code provides as follows, in pertinent

part:

(a) 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. ...

8 (c) If a court of this state has acquired continuing, exclusive jurisdiction, no other court of this state has jurisdiction of a suit with regard to that child[.]

Tex. Fam. Code Ann. § 155.001(a), (c) (West Supp. 2016).2 Section 155.002 of the

Family Code states: “Except as otherwise provided by this subchapter, a court with

continuing, exclusive jurisdiction retains jurisdiction of the parties and matters

provided by this title.” Id. § 155.002 (West 2014).

According to Lisa, because the 75th District Court acquired exclusive,

continuing jurisdiction upon rendition of the final decree of divorce, the transfer

mechanism provided by section 155.202(b) of the Family Code is the only legitimate

means by which the 75th District Court could assign the case to the County Court at

Law, and that such an assignment must be made upon request or motion of a party.

Section 155.202(b) provides that, “[f]or the convenience of the parties and witnesses

and in the interest of justice,” upon timely motion of a party, the trial court may

transfer the proceeding to a proper court in another county. Id. § 155.202(b) (West

2014). Because section 155.202(b) deals with transferring cases to a court in another

county, it offers Lisa no relief. See id.

2 Because the 2015 amendment of section 155.001 is not material to the outcome of this appeal, we cite to the current version of the statute. 9 We turn, therefore, to the issue of whether the District Court’s order assigning

the case was valid; that is, whether sections 155.001 and 155.002 precluded the 75th

District Court of Liberty County from assigning the case to the County Court at Law

of Liberty County. Rule 9 of the Texas Rules of Judicial Administration provides

that the district and statutory county court judges of a county shall adopt rules for

orderly administration of the courts’ affairs, including, among other things, docket

management and other matters necessary to provide for orderly, prompt, efficient,

and effective administration of justice. Tex. R. Jud. Admin. 9 (a), (b)(1), (8),

reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app. (West 2013)). In addition,

Subchapter D of the Texas Government Code, which is entitled “Administration by

County[,]” deals with rules for handling of cases between courts of each county. See

Tex. Gov’t Code Ann. §§ 74.091-74.098 (West 2013 & Supp. 2016). Section 74.093

of the Government Code provides that the district and statutory county court judges

in each county shall adopt local rules of administration which must provide for,

among other things, “assignment, docketing, transfer, and hearing of all cases,

subject to jurisdictional limitations of the district courts and statutory county

courts[.]” Id. § 74.093(a), (b)(1) (West Supp. 2016). Section 74.094 of the

Government Code provides as follows:

(a) A district or statutory county court judge may hear and determine a matter pending in any district or statutory county court in the county 10 regardless of whether the matter is preliminary or final or whether there is a judgment in the matter. The judge may sign a judgment or order in any of the courts regardless of whether the case is transferred. The judgment, order, or action is valid and binding as if the case were pending in the court of the judge who acts in the matter. The authority of this subsection applies to an active, former, or retired judge assigned to a court having jurisdiction as provided by Subchapter C.

Id. § 74.094(a) (West 2013). Subchapter C of the Government Code deals with the

powers and duties of presiding judges of administrative judicial districts, including

those judges’ ability to assign cases from one court to another. See id. §§ 74.041-

74.062 (West 2013 & Supp. 2016).

Under section 74.093, “the only limitation on local rules governing transfer

of cases within a county is that the case must be transferred to a court that has

jurisdiction over the case.” In re Siemens Corp., 153 S.W.3d 694, 697 (Tex. App.—

Dallas 2005, orig. proceeding). The Government Code specifically provides that “a

county court at law in Liberty County has concurrent jurisdiction with the district

court in family law cases and proceedings.” Tex. Gov’t Code Ann. § 25.1482(a)

(West Supp. 2016). When the two courts at issue have concurrent jurisdiction, “the

jurisdictional limitation on transfers contained in section 74.093 is not implicated[.]”

In re Siemens Corp., 153 S.W.3d at 697.

Section 74.093 of the Government Code lists assignments and transfers

separately. See id. § 74.093 (West Supp. 2016). In addition, this Court has held that 11 “[a] distinction must be made . . . between a suit transferred from district court to

county court at law, or vice versa, and a suit in which a county court at law judge is

assigned to hear cases for a district court judge.” In re Nash, 13 S.W.3d 894, 896-

97 (Tex. App.—Beaumont 2000, orig. proceeding). In addition, in the context of

comparing the docket equalization statute in the Government Code to chapter 155

of the Family Code, the Fort Worth Court of Appeals concluded that chapter 155 of

the Family Code “does not prohibit a district court of continuing, exclusive

jurisdiction from transferring, on its own motion, a case to another district court in

the same county for purposes of docket equalization under section 24.950 of the

[G]overnment [C]ode.” In re G.R.M., 45 S.W.3d 764, 771 (Tex. App.—Fort Worth

2001, orig. proceeding) (emphasis added). Id. at 769-70.

Given that the judge of the 75th District Court entitled his order “Order

Assigning Case[,]” stated in the order that the case “[i]s hereby assigned to the

County Court at Law of Liberty County, Texas[,]” and noted in the order that the

County Court at Law “will have jurisdiction over this cause for all purposes[,]” we

conclude that the order was an assignment of the case to a court that had concurrent

jurisdiction, not a transfer of the case to the County Court at Law by the court of

continuing, exclusive jurisdiction as contemplated by the Family Code. See Tex.

Fam. Code Ann. §§ 155.001(a), (c), 155.002; Tex. R. Jud. Admin. 9; In re Siemens

12 Corp., 153 S.W.3d at 697; Nash, 13 S.W.3d at 896-97. For all of these reasons, we

conclude that the 75th District Court did not lack jurisdiction to assign the case to

the County Court at Law, and the County Court at Law did not lack jurisdiction to

modify or enforce the divorce decree. Accordingly, we overrule issues one and four.

ISSUE TWO

In issue two, Lisa argues that the trial court erred by retroactively modifying

or refusing to enforce the divorce decree. Lisa argues that Virgil did not provide

sufficient testimony or evidence of substantially changed circumstances at the

hearing held on December 21, 2015, and she quotes extensively from the record of

that hearing. Lisa also complains that the trial court made its order retroactive, and

although she argues in her statement of facts that her attorney did not receive notice

of the hearing held on February 11, 2016, she provided no argument or authorities

as to that issue. See Tex. R. App. P. 33.1(a), 38.1(i). Lisa did not timely appeal the

trial court’s order of February 11, 2016, which memorialized its pronouncements

made at the conclusion of the December 21 hearing. See Tex. R. App. P. 26.1.

Accordingly, we overrule issue two.

ISSUE THREE

In issue three, Lisa complains that the trial court erred by denying her motion

to enforce in its order of January 4, 2017. Lisa timely appealed from the trial court’s

13 order of January 4, 2017. However, Lisa provides no argument or authorities in her

brief regarding the trial court’s denial of her motion to enforce. We therefore

conclude that Lisa has waived her appellate complaint regarding this issue. See Tex.

R. App. P. 38.1(i) (stating that the appellant’s brief “must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to

the record[]”). Accordingly, we overrule issue three. Having overruled each of Lisa’s

issues, we affirm the trial court’s judgment.

AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice

Submitted on November 3, 2017 Opinion Delivered December 7, 2017

Before McKeithen, C.J., Horton and Johnson, JJ.