In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00425-CV
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IN THE INTEREST OF F.A.S.
________________________________________________________________________
On Appeal from the 411th District Court
San Jacinto County, Texas
Trial Cause No. CV13615
________________________________________________________________________
MEMORANDUM OPINION
J.S (Father) appeals the trial court‟s order granting T.M. (Mother)1 a
summary judgment dismissing Father‟s petition to modify the parent-child
relationship. We vacate the summary judgment and dismiss the appeal.
Background
Mother and Father divorced on May 7, 2008. According to the agreed final
divorce decree (hereinafter “the divorce decree”), Mother and Father had one child,
1
For purposes of confidentiality, we refer to the child and the parties by
initials or by relationship to one another. See Tex. Fam. Code Ann. § 109.002(d)
(West 2014).
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F.A.S. In the divorce decree, both Mother and Father are designated as joint
managing conservators of F.A.S. and Mother was awarded the exclusive right to
designate the primary residence of F.A.S., without regard to geographic location.
On February 12, 2013, Father filed a Petition to Modify Parent-Child
Relationship in Walker County, Texas. On March 12, 2013, the Petition to Modify
Parent-Child Relationship was transferred from Walker County to San Jacinto
County, and assigned cause number CV13615. On April 3, 2013, Father filed a
First Amended Petition to Modify Parent-Child Relationship (“First Amended
Petition to Modify”) in San Jacinto County, Texas, the county where F.A.S.
allegedly resided at the time of the filing of the amended petition. Father alleged in
the First Amended Petition to Modify that “[t]he circumstances of the child, a
conservator, or other party affected by the order to be modified have materially and
substantially changed since the date of rendition of the order to be modified.”
Father also requested that the divorce decree‟s terms and conditions for access to
or possession of F.A.S. be modified to provide that “[t]he parties shall not remove
[F.A.S.] from San Jacinto and contiguous counties for the purpose of changing the
primary residence of [F.A.S.] until modified by further order of the court of
continuing jurisdiction or by written agreement signed by the parties and filed with
the court.” Additionally, Father requested a temporary restraining order and
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permanent injunction against Mother, and attorney‟s fees, expenses, costs, and
interest.
On May 2, 2013, the San Jacinto District Court held a hearing on Father‟s
First Amended Petition to Modify. Father testified at the hearing that he filed the
suit after Mother informed him that she was going to move to New Hampshire
with F.A.S., live with her fiancé, quit her job, and homeschool F.A.S. Father
testified he was seeking to restrict where F.A.S. lived because he believed F.A.S.
was not comfortable with the idea of moving to New Hampshire and Father did not
agree with Mother‟s decision to homeschool F.A.S. Father testified that he has “a
big issue” with F.A.S. moving to New Hampshire and that he would like “to have a
geographical restriction just to keep her here.” He admitted that Mother tried to
work out a proposed change in visitation in light of the move, and that he never
met with her and then filed the suit to modify. Mother testified regarding her plans
to move with F.A.S. to New Hampshire to live with Mother‟s fiancé, whose salary
was sufficient enough to allow Mother to not work and to allow Mother to
homeschool F.A.S. According to Mother, she had a proposal for possession and
access that she was willing to offer Father, but she never had a chance to discuss it
with Father. Mother testified that the move was in F.A.S.‟s best interest, that
Mother was willing to work on an agreement with Father regarding possession and
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access, and that the move would not be a financial hardship for Father because
Mother would pay the resulting extra expenses such as flight expenses. At the
hearing on May 2, 2013, the trial court orally denied Father‟s motion to modify at
the conclusion of the hearing. The court commented about the visitation schedule
as proposed by Mother and asked Father if the parties were going to continue to
have “another fight about [visitation].” The parties discussed the visitation terms
on the record and Mother‟s attorney suggested a Rule 11 agreement and the parties
agreed to put something in writing or file a trial amendment.
On May 21, 2013, and prior to entry of a written order or other judgment
being entered of record on the First Amended Petition to Modify, but after the
hearing and oral pronouncement on the record of the trial court denying the First
Amended Petition to Modify, Father filed a Notice of Revocation of Agreement
(Notice). In the Notice, Father stated he was revoking and rescinding any
agreement that he “may have made during the trial on May 2, 2013, related to (1)
the modification of possession and access of [F.A.S.] presented by [Mother] and/or
(2) any „trial amendment‟ related to the modification of possession and access of
[F.A.S.]” Therein Father also “revoke[d] his consent to any judgment reflecting an
agreement to the modification of the terms of possession and access to [F.A.S.]”
On May 21, 2013, Father filed another pleading styled as “Petition to Modify
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Parent-Child Relationship.” Father filed the May 2013 Petition to Modify in the
same cause numbered proceeding in which he previously filed his First Amended
Petition to Modify. In his May 2013 Petition to Modify, Father requested that he be
appointed as the person who has the right to designate F.A.S.‟s primary residency;
requested that Mother have possession of and access to F.A.S. pursuant to a
standard possession order; requested a termination of his child support obligation;
asked for the court to order that Mother be ordered to pay child support, to provide
health insurance for F.A.S. or reimburse Father for the cost of health insurance,
and that Mother pay an equitable portion of F.A.S.‟s uninsured medical expenses;
and requested that Father be awarded attorney‟s fees, expenses, costs, and interest.
On June 13, 2013, the trial court signed a written order denying Father‟s
Petition to Modify. The order stated the following:
On May 2, 2013 Petitioner‟s Petition to Modify Parent-Child
Relationship was called to the attention of the Court.
Petitioner’s Requested Modification
The suit was filed for the purpose of modifying the prior order
of the Court to add a residency restriction for the child.
IT IS ORDERED that the request to modify the prior order of
the Court is DENIED.
Relief Not Granted
IT IS ORDERED that all relief requested in this case and not
expressly granted is denied. All terms of the prior orders not
specifically modified in this order shall remain in full force and effect.
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On June 24, 2013, Father requested that the trial court provide written
findings of fact and conclusions of law. On June 28, 2013, the trial court issued its
Findings of Fact and Conclusions of Law. Therein the trial court made findings of
fact as follows: Father and Mother are the parents of F.A.S., Father and Mother are
joint managing conservators and Mother has the right to designate the child‟s
primary residence, that Father is entitled to periods of possession with F.A.S.
pursuant to the Standard Possession Order, that Mother plans to marry another man
and move to New Hampshire with her new husband and her family, including
F.A.S., that Father is requesting a modification to restrict the residency of the child
to San Jacinto County, Texas and contiguous counties. The trial court made the
following conclusions of law: the court has jurisdiction of the child at issue and the
subject matter of the case, it is in the best interest of the child that Mother be
allowed to move to New Hampshire and establish child‟s primary residence there,
and the requested modification is not in the best interest of the child.
On March 20, 2014, Mother filed Respondent‟s Original Answer. On June
10, 2014, Mother filed a Motion for Summary Judgment asserting the following:
(1) this lawsuit seeking to change the person with the exclusive right
to determine the primary residence of the child was filed within one
year of the rendition of an order denying a change to the scope, or
terms of the then-existing designation; (2) there is no evidence that the
standards of Texas Family Code Section 156.102 have been met; (3)
there was no material and substantial change in circumstances of the
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child, a conservator, or other party affected by the order to be
modified; and (4) Petitioner is barred from seeking his requested relief
in this lawsuit under common law principles of res judicata and
collateral estoppel.
Mother attached certain exhibits to the summary judgment motion, including
copies of the 2008 Agreed Final Decree of Divorce, the Petition to Modify Parent-
Child Relationship filed February 12, 2013, the transcript from the hearing held on
May 2, 2013, the Petition to Modify Parent-Child Relationship filed by Father on
May 21, 2013, the Notice of Revocation of Agreement filed by Father on May 21,
2013, the Order of the trial court filed June 13, 2013, denying the Petition to
Modify, the Findings of Fact and Conclusions of Law filed by the trial court on
June 28, 2013, and Father‟s Answers to Interrogatories served on Mother on May
21, 2014.Father filed a response to Mother‟s summary judgment motion. Therein,
Father argued that he was not required to file an affidavit because the requirements
of section 156.1022 do not apply because he was seeking to modify the 2008 Final
2
Section 156.102 of the Texas Family Code addresses the modification of
the exclusive right to determine primary residence of a child within one year of the
order:
(a) If a suit seeking to modify the designation of the person having the
exclusive right to designate the primary residence of a child is filed
not later than one year after the earlier of the date of the rendition of
the order or the date of the signing of a mediated or collaborative law
settlement agreement on which the order is based, the person filing the
suit shall execute and attach an affidavit as provided by Subsection
(b).
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Decree of Divorce, which was entered more than a year prior to the filing of his
second motion to modify. He cites to Jilek v. Chatman, 613 S.W.2d 558 (Tex. Civ.
App.—Beaumont 1981, no writ), in support of his argument that even if the
requirements of section 156.102(a) apply here, they expired because the trial court
did not hold a hearing on Father‟s second petition to modify and Mother failed to
bring the “alleged pleading defect to the trial court‟s attention until well after a
year has [sic] elapsed since the parties were last before the court.” Father also
asserted that a genuine fact issue exits on the element of material and substantial
Tex. Fam. Code Ann. § 156.102(a) (West 2014). Subsection (b) requires that the
affidavit allege at least one of the following, along with supporting facts:
(1) that the child‟s present environment may endanger the child‟s
physical health or significantly impair the child‟s emotional
development;
(2) that the person who has the exclusive right to designate the
primary residence of the child is the person seeking or consenting to
the modification and the modification is in the best interest of the
child; or
(3) that the person who has exclusive right to designate the primary
residence of the child has voluntarily relinquished the primary care
and possession of the child for at least six months and the
modification is in the best interest of the child.
Id. § 156.102(b). Subsection (c) provides that, unless the court determines based on
the affidavit that the facts in the affidavit are adequate to support the allegation
listed in subsection (b), the court “shall deny the relief sought and refuse to
schedule a hearing for modification under this section[.]”Id. § 156.102(c). If the
court determines that the allegations are adequately supported by the facts stated in
the affidavit then the court “shall set a time and place for the hearing.” 2 Id.
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change in circumstances and that the affirmative defenses of res judicata or
collateral estoppel are not available to Mother, and Father attached his own
affidavit.
Mother objected to Father‟s summary judgment affidavit on the grounds that
it “is filled with numerous statements that contain hearsay, are speculative, are
conclusory and/or are in violation of the best evidence rule.” On August 22, 2014,
Father filed a “Motion for Leave to File Supplemental Exhibit to Response to
Motion for Summary Judgment” wherein Father sought permission from the trial
court to supplement his Response to the Motion for Summary Judgment with an
affidavit of Mother‟s new husband‟s ex-wife. On August 25, 2014, after a hearing
on Mother‟s Motion for Summary Judgment, the trial court signed an order
granting Mother‟s motion. Father appealed.
Issues on Appeal
In three appellate issues, Father argues the trial court erred in granting
Mother‟s Motion for Summary Judgment. Father argues that the trial court erred
because Father was not required to attach an affidavit under section 156.102 of the
Texas Family Code, (2) there is a genuine issue of material fact about the
circumstances of the child, a conservator or other party affected by the order had
materially and substantially changed since May 2, 2013, and (3) the affirmative
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defenses of res judicata and of collateral estoppel would not have been a proper
basis for granting summary judgment because Mother failed to plead such defenses
in her answer.
Analysis
After the hearing of May 2, 2013, but prior to the trial court‟s signing of the
written order dated June 13, 2013, Father filed his May 2013 Petition to Modify in
the same cause-numbered proceeding in which he previously filed his First
Amended Petition to Modify. Father did not seek leave of court to file the May
2013 Petition and Father‟s filing of the May 2013 Petition was an ineffective
attempt for a trial amendment. See Tex. R. Civ. P. 63 (requiring leave of court to
amend), Tex. R. Civ. P. 67 (requiring leave of court to amend pleadings to conform
to issues as tried). The May 2013 Petition was filed after the trial court made its
oral pronouncement denying Father‟s request to modify. Thereafter, the trial court
entered an order dated June 13, 2013, which was also signed after the filing of the
May 2013 Petition, wherein the trial court states in relevant part that “IT IS
ORDERED that all relief requested in this case and not expressly granted is
denied.” (emphasis added). Father requested findings of fact and conclusions of
law which were entered by the trial court on June 28, 2013. We conclude that the
written order signed and filed June 13, 2013, denying Father‟s Petition to Modify
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disposed of the entire controversy and was a final appealable order. See Lehmann
v. Har-Con Corp, 395 S.W.3d 191, 192-93 (Tex. 2001) (an order that disposes of
all claims and parties then before the court is a final appealable order). Father
failed to file a timely notice of appeal of the written order dated June 13, 2013.
Tex. R. App. P. 26.1. We vacate the trial court‟s order granting Mother‟s motion
for summary judgment, and we dismiss the appeal for lack of jurisdiction.
VACATED AND DISMISSED.
_________________________
LEANNE JOHNSON
Justice
Submitted on March 19, 2015
Opinion Delivered October 29, 2015
Before Kreger, Horton, and Johnson, JJ.
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