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In re Reardon

Court of Appeals of Texas, Second District, Fort Worth

March 23, 2017

IN RE RICO DANIEL REARDON RELATOR

         ORIGINAL PROCEEDING TRIAL COURT NO. 325-425702-07

          PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.

          OPINION

          BONNIE SUDDERTH JUSTICE

         I. Introduction

         In a 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.

         II. Factual and Procedural Background

         Father 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, 2016.

         Father 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.

         Mother 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.

         The 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 this court.

         The 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.

         III. Jurisdiction

         Father 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.).

         Mother 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).

         Both 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.

         A. Transferee precedent does not bind a Transferor court

         1. Background

         We 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).

         While 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. Id.

         The 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.

         2. Texas Rule of Appellate Procedure 41.3 ...


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