Court of Appeals of Texas, Second District, Fort Worth
PROCEEDING TRIAL COURT NO. 325-425702-07
LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.
single issue, Relator Rico Daniel Reardon (Father) argues
that a writ of prohibition should issue because Respondent,
the Honorable Judith Wells of the 325th District Court of
Tarrant County, does not have jurisdiction to hear pending
motions to modify in a suit affecting the parent-child
relationship (SAPCR) when an appeal is pending in this court
from the last final order. For the reasons explained below,
we deny Father's petition for writ of prohibition.
Factual and Procedural Background
and real party in interest Mother filed competing motions to
modify the parent-child relationship, and trial was held in
May 2015. The trial judge issued a final order in that case
on August 31, 2015, and then she set aside that order on
November 11, 2015, and signed a reformed order on May 19,
filed a new petition to modify the parent-child relationship
on June 6, 2016, requesting modification of the May 19, 2016
order, alleging that the circumstances of the child, a
conservator, or other party affected by the order had
materially and substantially changed. Among other relief,
Father's petition sought restrictions on Mother's
access to the child and additional periods of possession of
the child for himself.
filed a counter-petition wherein she, too, sought
modification of the May 19 order. In the meantime, Mother
also filed a motion for new trial or to correct, modify, or
reform the May 19 order.
trial judge granted Mother's motion to reform the May 19
order and signed a second reformed order on July 26, 2016.
Mother then filed another motion for new trial, as well as a
notice of appeal, related to the July 26 order. That appeal,
bearing cause number 02-16-00401-CV, is currently pending in
trial court conducted hearings in the modification suit in
piecemeal fashion, beginning on September 12, 2016 and
continuing through November. On November 14, Father filed a
"Motion to Deny Relief, " asking the trial court to
deny Mother's request for relief and to award him
attorney's fees and costs. Rather than grant his motion,
the following day the trial court signed a temporary
injunction prohibiting Father from engaging in certain
activities related the child's mental and physical
health. Several days later, his Motion to Deny Relief was
denied, and on December 5, Father filed a petition for writ
of prohibition and a motion for emergency relief in this
court. We granted the stay, requested a response, and granted
Father's request for oral argument.
argues that a writ of prohibition should issue because the
trial court does not have jurisdiction to hear pending
motions to modify in a SAPCR when an appeal is pending from
the last final order. He bases his argument primarily on the
Eighth court's holding in In re E.W.N., 482
S.W.3d 150 (Tex. App.-El Paso 2015, no pet.).
responds that a trial court having continuing, exclusive
jurisdiction in a SAPCR continues to enjoy jurisdiction to
modify a final order even while an appeal of that order is
pending. To support her position, Mother relies on authority
from the First and Fifth courts. See Blank v.
Nuszen, No. 01-13-01061-CV, 2015 WL 4747022 (Tex.
App.-Houston [1st Dist.] Aug. 11, 2015, no pet.) (mem. op.);
Hudson v. Markum, 931 S.W.2d 336 (Tex. App.-Dallas
1996, no writ).
sides acknowledge the split in authority between the First
and Fifth courts and the Eighth court. Father contends that
we must follow the decision in E.W.N. as precedent
of this court because the Eighth court was a transferee from
this court. See Tex. R. App. P. 41.3. Father argues
that until E.W.N. is overruled by an en banc
decision of this court, we are bound by it. While we
certainly respect the analysis employed by our sister court,
the initial question before us is whether we are bound, as
the transferor court, to its holding.
Transferee precedent does not bind a Transferor
note, ab initio, that E.W.N. was complicated by not
just one but two docket equalization orders, diverting the
first appeal and the second appeal to different regions of
the state. In September 2011, in response to the father's
motion to modify the parent-child relationship between him
and his son, the Denton County trial court ordered the father
to pay $1, 500 in monthly child support and gave the mother
the exclusive right to designate the child's residence,
among other things. E.W.N., 482 S.W.3d at 151;
Nichol v. Nichol, No. 07-12-00035-CV, 2014 WL
199652, at *1 (Tex. App.-Amarillo Jan. 15, 2014, no pet.)
(mem. op.). The father appealed to this court, and in January
2012, the first docket equalization order forced the transfer
of the appeal of the trial court's original order
establishing conservatorship and child support for E.W.N. to
the Seventh court, in Amarillo. See E.W.N., 482
S.W.3d at 151-52; Nichol, 2014 WL 199652, at *1
(affirming the trial court's order).
the appeal was pending, the father filed another petition to
modify, seeking to reduce the $1, 500 monthly amount of child
support and seeking the exclusive right to determine the
child's primary residence. E.W.N., 482 S.W.3d at
151-52. The trial court dismissed the petition to modify on
the basis that we had exclusive jurisdiction over the entire
cause. Id. at 152. The father appealed to this
court, and a second docket equalization order forced the
transfer of that appeal to the Eighth court, in El Paso.
Id. While the second appeal remained pending in the
Eighth court, the Seventh court issued its opinion and
judgment affirming the trial court's original order.
Eighth court affirmed the trial court's dismissal of the
father's second petition to modify, reasoning that once
the trial court's plenary power had expired under the
order sought to be modified, the appellate court acquired
exclusive jurisdiction of the appeal and the entire cause,
and it concluded that the remedy while an appeal is pending
lies within the appellate court's power to suspend
problematic orders and to abate an appeal to the trial court
for an emergency hearing for the child's protection.
Id. at 154-57. We consider the analysis used by our
sister court to reach this result in our analysis below of
this issue of first impression in this court.
Texas Rule of Appellate Procedure 41.3 ...