Yevak v. Yevak

BLEIL, Justice.

Edward Yevak, and his wife, Gene, appeal from the judgment granting a divorce *165between their son, Mark, and Stacy Yevak. They complain that the trial court erred in dismissing their plea in intervention. We agree and reverse.

Mark and Stacy Yevak married in November, 1980. One child was born of this marriage. On January 11, 1984, Mark and Stacy Yevak filed for divorce. Mark’s parents, Edward and Gene Yevak, filed a plea in intervention and on February 25, 1985, the trial court appointed them temporary managing conservators of the child. On March 18, the trial court dismissed the plea in intervention and vacated the order appointing the grandparents temporary managing conservators. On March 20, the trial court divorced Mark and Stacy Yevak and named them joint managing conservators of the child.

The grandparents complain that the trial court erred in dismissing their plea in intervention because grandparents do have standing to intervene in suits concerning managing conservatorship of their grandchildren. They claim that the trial court erred in applying Tex.Fam.Code Ann. § 11.-03 (Vernon 1975) to intervenors, instead of limiting it to persons initiating suits affecting the parent-child relationship. During the time relevant to this suit, Section 11.03 provided:

A suit affecting the parent-child relationship may be brought by any person with an interest in the child, including the child (through a representative authorized by the court), any agency of the state or of a political subdivision of the state, and any authorized agency. A person has an interest in a child if the person has had possession and control of the child for at least six months immediately preceding the filing of the petition or is named in Section 11.09(a) of this code as being entitled to service by citation.

Tex.Fam.Code Ann. § 11.09(a) (Vernon Supp.1986) provided:

Except as provided in Subsection (b) of this section, the following persons are entitled to service of citation on the filing of a petition in a suit affecting the parent-child relationship:
(1) the managing conservator, if any;
(2) possessory conservators, if any;
(3) persons, if any, having access to the child under an order of the court;
(4) persons, if any, required by law or by order of a court to provide for the support of a child;
(5) the guardian of the person of the child, if any;
(6) the guardian of the estate of the child, if any;
(7) each parent as to whom the parent-child relationship has not been terminated or process has not been waived under Section 15.03(c)(2) of this code;
(8) in a suit in which termination of the parent-child relationship between an illegitimate child and its mother is sought, the alleged father or probable father, unless there is attached to the petition an affidavit of waiver of interest in a child executed by the alleged father or probable father as provided in Section 15.041 of this code or unless the petition states that the identity of the father is unknown; and
(9) in a suit to determine the paternity of a child, the alleged father, unless the alleged father is a petitioner.

In the order dismissing the grandparents’ plea in intervention, the trial court found:

[T]hat the Intervenors, Edwin J. Yevak and Gene Yevak, had not had possession of the minor child, Shawn Christopher Yevak, for six (6) months prior to the time of the filing of their unverified intervention herein, and were not persons who have an interest in such child as set out in Sec. 11.03 of the Family Code of the State of Texas, and have no standing to maintain an intervention herein, ....

There is a significant distinction between someone who initiates a suit and someone who intervenes in a suit. Young v. Young, 693 S.W.2d 696 (Tex.App.-Houston [14th Dist.] 1985, writ dism’d). The grandparents do not fit into any category of persons entitled to bring or initiate a suit affecting the parent-child relationship under Tex. Fam.Code Ann. § 11.03 (Vernon 1975), and *166§ 11.09(a) (Vernon Supp.1986). However, a grandparent may intervene in this type of action, once the lawsuit has been initiated by a person authorized to do so under Sections 11.03 and 11.09(a).

A grandparent’s intervention may enhance the trial court's ability to adjudicate the cause in the best interests of the child. This intervention is subject to the court’s discretion as to whether they may remain in the case because of a justiciable interest in the child. Young v. Young, supra. Tex.R.Civ.P. 60 provides that any party may intervene, subject to being stricken by the court for sufficient cause on the motion of the opposite party. In her special exceptions to the plea in intervention, Stacy Yevak asked that the plea in intervention be stricken. So, while the grandparents could intervene in the suit, the trial court had the discretion to strike their plea in intervention. However, we conclude that, having allowed the intervention, the court abused its discretion in not allowing evidence to be presented so that the question of whether sufficient cause to strike the intervention could be determined from the evidence.

The grandparents further maintain that the trial court erred in dismissing their plea in intervention because Sections 11.03 and 11.09(a) recognize the standing of persons who have been appointed temporary managing conservators, and the grandparents had been appointed temporary managing conservators. The petition was filed January 11, 1985, the grandparents filed their plea in intervention on October 23, 1984, and the grandparents were named as managing conservators of the child on February 25, 1985. At either the date the petition was filed or the date the plea in intervention was filed, the grandparents did not meet the requirements of Sections 11.03 and 11.09(a), because they were not at those times temporary managing conservators of the child.

We reverse the trial court’s judgment and remand the cause for a determination of whether sufficient cause exists to strike the petition in intervention.