Urbish v. James

688 S.W.2d 230, 1985 Tex. App. LEXIS 7491
CourtCourt of Appeals of Texas
DecidedMarch 14, 1985
DocketNo. B14-84-568-CV
StatusPublished
Cited by4 cases

This text of 688 S.W.2d 230 (Urbish v. James) 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
Urbish v. James, 688 S.W.2d 230, 1985 Tex. App. LEXIS 7491 (Tex. Ct. App. 1985).

Opinion

PAUL PRESSLER, Justice.

This court issued its opinion in this matter on January 10, 1985. Relator filed a Motion for Rehearing En Banc. A panel of three judges who were not involved in the original opinion have voted to deny the Motion for Rehearing En Banc. Chief Justice J. Curtiss Brown recused himself. The opinion of January 10, 1985 is withdrawn and the following is substituted.

OPINION

Relator requests a Writ of Mandamus directing Respondent to vacate his holding on Relator’s Motion to Show Authority, the Motion for Re-hearing, and the Motion for Sanctions filed by his former wife and to hold that he has had the sole right to represent his son in all legal matters since the date of his appointment as permanent managing conservator. We deny the writ.

The following dates are important to our consideration:

March 24, 1975 — Relator filed petition for divorce from Mary Urbish.

April 25, 1975 — Temporary Orders were entered directing that Relator become temporary managing conservator of their children, Frank Lavelle Urbish, Jr. and Michael Shane Urbish.

July 22, 1975 — Mary Urbish filed a Petition for Divorce together with an agreement that Relator should be managing conservator of their children. The two divorce petitions were subsequently consolidated.

December 15, 1976 — The divorce case was dismissed for want of prosecution. Relator claims that after this dismissal he and Mary Urbish never lived together as man and wife and that he had custody and control over their children at all times.

July 9,1979 — Michael Urbish was severely burned in a fire.

July 12, 1979 — An employment contract was executed between Robert E. Taitón, Attorney at Law, and Mary Urbish, Individually, and as Next Friend of Michael Ur-bish.

July 20, 1979 — Mary Urbish, acting as Next Friend of Michael Urbish, filed a suit for personal injuries to Michael Urbish. On the same day Mary Urbish filed a new petition for divorce. A temporary restraining order was issued that day in which Mary Urbish was appointed temporary managing conservator.

September 27, 1979 — The order granting Mary Urbish temporary managing conser-vatorship was overturned. Relator’s parents were named temporary managing conservators of Michael Urbish.

July 1, 1981 — Relator and his parents filed a Petition in Intervention in the personal injury suit filed by Mary Urbish to recover for Relator’s injuries and those of his minor son.

[232]*232December 10, 1981 — Divorce decree was entered and Relator was appointed permanent managing conservator of Michael Ur-bish.

December 17, 1981 — Employment contract entered into between Relator and the law firm of Kronzer, Abraham, Watkins, Nichols, Ballard & Friend, whereby Relator acts as Next Friend to represent the minor plaintiff, Michael S. Urbish.

December 23, 1981 — Relator filed a Motion to Show Authority under TEX.R. CIV.P. 12 directed toward Mary Urbish and her attorneys.

December 29, 1982 — Motion to Show Authority was overruled by Judge Sharolyn Wood.

February 22, 1983 — Relator’s Motion for Rehearing was overruled by Respondent, to whom Relator’s file was transferred when Judge Wood’s term expired.

April 27, 1983 — Relator’s Motion for Leave to File a Petition for Writ of Mandamus was overruled by the Texas Supreme Court. In the petition, Relator requested the Court to direct Respondent to reverse his holding on Relator’s Motion to Show Authority to represent Michael Urbish and to enter an order that Mary Urbish and the law firm she had retained had no authority to represent the minor plaintiff since the order of December 10, 1981.

June 8, 1983 — Relator’s Motion for Rehearing was overruled by the Texas Supreme Court.

January 16, 1984 — Relator filed a Petition for Declaratory Judgment in Cause No. 84-01989 currently pending in the 11th District Court of Harris County based on questions raised in his Motion to Show Authority and in his request for Writ of Mandamus.

July 30, 1984 — A Motion for Sanctions in which Mary Urbish Stanley requested Respondent to order Relator and his attorneys to desist from representing themselves as attorneys for Michael S. Urbish was sustained. The Court ordered that Mary Ur-bish Stanley and her attorneys alone represent Michael S. Urbish and that Relator and his attorneys desist in representing themselves as attorneys for Michael Ur-bish.

In his original point of error, Relator argues that Respondent erred in holding that the managing conservator does not have the power and duty to represent his minor child and to make decisions of substantial legal significance concerning the child. Thus he contends that the orders overruling his Motion to Show Authority and granting Mary Urbish Stanley’s Motion for Sanctions are void and an abuse of judicial discretion. The Supreme Court or a Court of Appeals is empowered to issue a writ of mandamus to compel a lower court to vacate a void order. Aztec Life Insurance Company of Texas v. Dellana, 667 S.W.2d 911, 914 (Tex.App. — Austin 1984, no writ); See TEX.REY.CIY.STAT.ANN. arts. 1733, 1824 (Vernon Supp.1984); An order is deemed void when issued through an abuse of discretion by a judicial officer. Aztec Life Insurance Company of Texas at 914; Zenith Radio Corporation v. Clark, 665 S.W.2d 804, 806 (Tex.App. — Austin 1983, no writ); Norvell & Sutton, The Original Writ of Mandamus in the Supreme Court of Texas, 1 St. Mary’s L.J. 177, 181 (1969). It is also deemed void when issued by a court without jurisdiction or authority. State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272, 274 (1939); Aztec Life Insurance Company of Texas, 667 S.W.2d at 914. Relator contends that the orders in question are void because they violate the express provisions of § 12.04 and § 14.02 of the Family Code. He further alleges that the orders are void because Respondent did not have jurisdiction to issue them. In other words, he argues, they are contrary to the continuing jurisdiction of the district court which ordered the dissolution of Relator’s marriage between Relator and Mary Urbish, thereby violating § 11.05 of the Family Code. We disagree.

Relator repeatedly cites § 12.04 and § 14.02 for the proposition that because he was awarded permanent managing conser-vatorship of Michael Urbish according to the district court's determination of the [233]*233“best interests” of the child, he has the sole legal right to represent his son in any suit which is to be heard by the trial court subsequent to his appointment as managing conservator. This court understands the reasons why Relator desires to exert control in this particular case. However, these statutes do not uphold this position.

Relator filed a Motion to Show Authority to challenge the authority of Mary Urbish to maintain the personal injury suit. The purpose of a Motion to Show Authority is to permit dismissal of suits instituted without authority. TEX.R.CIY.P. 12; See Mobile Homes of America v. Easy Living, 527 S.W.2d 847, 848 (Tex.Civ.App.

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688 S.W.2d 230, 1985 Tex. App. LEXIS 7491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/urbish-v-james-texapp-1985.