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In re B.N.L.-B.

Court of Appeals of Texas, Fifth District, Dallas

May 10, 2017

IN THE INTEREST OF B.N.L.-B., A CHILD

         On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-07-17647-U.

          Before Justices Lang-Miers and Myers [1]

          OPINION

          LANA MYERS JUSTICE

         Colleen Logan appeals the trial court's order modifying a previous possession order and giving appellee Mark Aguirre additional possession time with the child, B.N.L.-B. Logan brings eight issues asserting the trial court lacked jurisdiction to render the orders in this case, abused its discretion by awarding Aguirre rights and duties concerning the child as well as additional access and possession of the child, and abused its discretion by denying Logan's claim for breach of contract and her request for attorney's fees. We affirm the trial court's judgment.

         BACKGROUND

         In 2001, Logan and Deborah Bloom were in what they characterized as a committed relationship, and they decided to have a child. They entered into the Donor Agreement with Aguirre to donate his sperm that would be used for Bloom to conceive a child. The agreement provided that Aguirre would not be a parent and that Logan and Bloom would not seek child support from him. Aguirre agreed "that he will not demand, request, or compel any guardianship, custody or visitation rights with respect to the Child(ren)" and he will not "claim any parental or paternal rights with respect to the Child(ren), except upon the death of both [Bloom] and [Logan]." Aguirre agreed to the termination of his parental rights and agreed to support adoption of the child by Logan. The parties also agreed that if Aguirre "seeks to establish a legal relationship" with the child, then he would indemnify Logan and Bloom for all costs they incurred in defending the action, including paying their attorney's fees.

         The insemination procedure was successful, and the child was born in 2002. Logan adopted the child in 2003. The adoption order contained the finding, "there is no father of the child in accordance with section 151.101 of the Texas Family Code."[2]

         Virginia Litigation and Consent Order

         After Logan adopted the child, Logan, Bloom, and the child moved to Virginia. Aguirre lived nearby in Washington, D.C. Logan and Bloom allowed Aguirre to have limited possession of the child. Aguirre brought suit against Logan and Bloom in Virginia seeking to put in writing the agreements they had made for Aguirre's possession of the child.[3] That suit was settled in May 2007 by the parties' signing a "Consent Order" agreeing to give Aguirre possession of the child for the third weekend of each month after Logan, Bloom, and the child moved to Dallas in September 2007.

         Dallas Litigation 2007 to 2009

         After Logan and Bloom returned to Texas, they separated. They also refused to allow Aguirre to have possession of the child for one weekend per month as provided in the Consent Order. Aguirre registered the Consent Order in a Dallas County court as a foreign judgment. In October 2007, Aguirre filed a motion for clarification and modification of the terms of the Consent Order seeking to make it sufficiently specific to be enforceable by contempt. The trial court signed temporary orders on December 5, 2007. In those orders, the court overruled Logan and Bloom's objection to the registration of the Consent Order as a foreign judgment and ruled that it was "duly registered as an enforceable order of this Court." The court also clarified the Consent Order by specifying the place where the exchange of possession of the child was to take place.

         On May 22, 2008, Bloom filed her petition in suit affecting the parent-child relationship (SAPCR) asserting she and Logan were separated and requesting the court appoint her sole managing conservator and order Logan to pay child support, provide health insurance, and pay for other expenses of the child. Logan filed a counterpetition requesting she be appointed sole managing conservator and that Bloom be ordered to pay child support. On June 30, Aguirre filed a petition in intervention in the SAPCR requesting that he be made a joint managing conservator of the child with Logan and Bloom and that he have the exclusive right to determine the child's primary residence. In the alternative, Aguirre asked that he be appointed a nonparent joint managing or possessory conservator and that he be awarded possession of the child equivalent to the periods awarded under the Family Code's Standard Possession Order. The trial court signed temporary orders on July 9 giving Bloom primary possession of the child, giving Logan possession of the child two weekends each month, and giving Aguirre possession for one weekend each month. Logan filed a plea to the jurisdiction asserting Aguirre did not have standing to intervene in her and Bloom's SAPCR.

         On December 9, 2008, Logan and Bloom signed a settlement agreement resolving their competing claims in the SAPCR. They agreed they would be joint managing conservators and that Logan would have possession of the child each Thursday and on the second, fourth, and fifth weekends of each month. Concerning Aguirre, they agreed he would have possession of the child only by their mutual agreement. They also agreed that if the court awarded Aguirre weekend possession of the child, they would alternate the parent from whose weekend Aguirre's possession would be taken.

         On May 11, 2009, the court ruled on Logan's plea to the jurisdiction challenging Aguirre's standing in his suit for intervention in Logan's and Bloom's SAPCR. The court ruled that Aguirre did not have standing to file his suit for intervention under sections 102.003(a)(3), (9) or 156.002(a), (b), but the court ruled Aguirre did have standing to file his suit for intervention under section 102.004(b) as a person with substantial past contact with the child.

         Logan and Bloom reached a settlement with Aguirre on his petition for intervention. They agreed to Aguirre's having possession of the child from 8:30 a.m. on Saturday to 8:00 p.m. on Sunday for one weekend per month, namely, the second weekend in odd-numbered months (Logan's weekend) and the third weekend in even-numbered months (Bloom's weekend). Aguirre was not to take the child out of Dallas County and into a contiguous county except to see the child's counselor without the prior approval of whichever parent last had possession of the child, and he could not take the child outside the contiguous counties of Dallas County without the prior approval of both parents. The parties did not reach a settlement on whether Aguirre should be required to pay Logan's and Bloom's attorney's fees.

         On May 14, 2009, the court signed its final order, which incorporated the parties' agreements and ordered Aguirre to pay Logan's and Bloom's attorney's fees. Aguirre appealed the final order's award of attorney's fees, but Logan and Bloom did not appeal the order. This Court reversed the amount of attorney's fees awarded to Logan and remanded that issue for further proceedings. In all other respects, we affirmed the May 14, 2009 order. See In re B.N.L.-B., 375 S.W.3d 557 (Tex. App.-Dallas 2012, no pet.).

         Dallas Litigation 2014 to 2016

         In July 2014, Aguirre filed a petition to modify the May 14, 2009 order. Aguirre requested he be appointed a nonparent possessory conservator. He also requested that the court modify the periods of his possession by switching the order of weekends he would have possession of the child[4] and that the court remove the restrictions on his ability to take the child out of Dallas County during his periods of possession. Logan filed a plea to the jurisdiction asserting that Aguirre, as a donor under the assisted-reproduction statute, did not have standing. Logan also asserted that the trial court's prior orders awarding Aguirre possession were void because the court had no subject-matter jurisdiction over Aguirre's claims. Logan also filed a motion to dismiss the May 14, 2009 order.

         On November 7, 2014, the trial court notified the parties that it would deny Logan's plea to the jurisdiction and motion to dismiss Aguirre's petition for modification. On December 9, 2014, Logan filed a counterclaim against Aguirre for breaching the Donor Agreement, and she sought specific performance of that agreement's provisions that Aguirre would pay all of Logan's costs for defending against Aguirre's claims. Logan also requested a declaratory judgment that Aguirre's actions in the case constituted a breach of the Donor Agreement.

         On July 23, 2015, the court signed orders denying Logan's plea to the jurisdiction, her motion to dismiss Aguirre's pleadings, and her motion to vacate the May 14, 2009 order. That same day, the court signed temporary orders giving Aguirre possession of the child for one weekend per month from the time school let out on Friday (or 3:00 p.m. if school was not in session) until school began on Monday (or 8:00 a.m. if school was not in session). The court also ordered that Aguirre would have possession of the child for an additional ten days during the summer with five days taken from each of the parents. The court also lifted the geographic restrictions and permitted Aguirre (1) to take the child anywhere in the continental United States during his periods of possession without Logan's and Bloom's permission and (2) to take the child outside the continental United States without Logan's and Bloom's permission during his summertime possession of the child.

         On October 28, 2015, the trial court signed the final order in this suit. The court stated in the order that Aguirre had a contractual right of possession of the child, and, in order "to insure the safety and ...


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