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In re A.T.R.

Court of Appeals of Texas, Fifth District, Dallas

July 7, 2017

IN THE INTEREST OF A.T.R. AND S.B.R., CHILDREN

         On Appeal from the 470th Judicial District Court Collin County, Texas Trial Court Cause No. 470-55466-06

          Before Justices Bridges, Lang-Miers, and Evans

          MEMORANDUM OPINION

          DAVID L. BRIDGES JUSTICE

         This appeal originates from a suit affecting the parent-child relationship in which appellant Father has repeatedly sought to modify or clarify child support. The issue raised on appeal is procedural in nature; therefore, we provide a procedural history as necessary rather than the underlying facts regarding the divorce or SAPCR, as they are not relevant for disposition of this appeal. Tex.R.App.P. 47.1. In a single issue, Father challenges the February 15, 2016 order, which incorporates the October 9, 2013 sanctions order, because he alleges the trial court erred by issuing the sanctions order after dismissing the case for want of prosecution without first reinstating the case pursuant to Texas Rule of Civil Procedure 165a.[1] We affirm.

         Father and appellee Mother divorced in September 2008 and are the parents of two children. Father filed his first motion to modify child support on March 31, 2009. He filed an amended motion on September 10, 2010. The trial court signed an order on his amended motion on September 30, 2011.

         Father later filed a "motion to modify order in suit affecting parent child relationship" on March 13, 2012. Mother filed a motion to compel discovery and for sanctions, which the trial court granted on August 15, 2013. The case was continued until September 10, 2013 but neither party appeared. The trial court dismissed the case for want of prosecution on September 10, 2013. The record indicates neither party knew the trial court dismissed for want of prosecution.

         Subsequently, on October 4, 2013, Mother filed another motion for sanctions because Father failed to comply with the August 15, 2013 sanctions order by neither providing answers to discovery nor paying the ordered attorney's fees. Mother requested that Father's pleadings be stricken and that he be ordered to pay all attorney's fees previously ordered and in conjunction with the present motion as child support. On October 9, 2013, the trial court signed an order on Mother's motion for sanctions, which included language striking all pending motions and petitions, dismissing Father's case with prejudice, and ordering $4, 038.22 as sanctions and child support. Father did not challenge this order.

         On December 10, 2014, Father again challenged the child support ordered in the September 30, 2011 order by filing a motion for clarification of child support. Mother answered on January 12, 2015 and asserted res judicata based on the October 9, 2013 order.

         The trial court held a hearing on Father's motion, which included arguments about the September 10, 2013 dismissal order and subsequent sanctions order. The trial court orally stated at the conclusion of the hearing that when "the second order was signed the Court still retained plenary power to modify, reform, correct its judgment. And my ruling is that the second order on motion for sanctions is a revised order of dismissal, not a new order." This oral pronouncement was later incorporated into the order signed February 15, 2016.[2]

         Father requested findings of fact and conclusions of law. The trial court made findings and conclusions regarding the "Court's order on Motion to Clarify Child Support Order, entered on February 15, 2016, clarifying the Order in Suit to Modify Parent-Child Relationship and Judgment for Support . . . entered on September 26, 2011."[3] The trial court made the following conclusions of law regarding prior orders:

1. The Order on Motion for Sanctions entered on October 9, 2013 was entered during the Court's period of plenary power following dismissal of the cause for want of prosecution on September 10, 2013.
2. The Court had jurisdiction to enter the Order on Motion for Sanctions on October 9, 2013.
3. The Order on Motion for Sanctions entered on October 9, 2013 is a valid, enforceable order.

         Father argues on appeal that the trial court erred by concluding that the October 9, 2013 order was a "revised dismissal order" because the case was never reinstated pursuant to Texas Rule of Civil Procedure 165a. Mother responds the trial court acted during its plenary power to modify the September 10, 2013 dismissal for want of prosecution, and "nothing in Texas jurisprudence requires that a dismissed case be reinstated before the dismissal order ...


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