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In re Marriage of Bowe

Court of Appeals of Texas, Fourteenth District

December 7, 2017

IN THE MATTER OF THE MARRIAGE OF LANCE BOWE AND SAMANTHA PERRY

         On Appeal from the 309th District Court Harris County, Texas Trial Court Cause Nos. 2005-12087 & 2005-12087A

          Panel consists of Justices Boyce, Donovan, and Jewell.

          MEMORANDUM OPINION

          William J. Boyce Justice.

         Father appeals six orders that altered a prior March 3, 2014 order dismissing all claims filed in a suit affecting the parent-child relationship.

         The March 2014 order granted relief in response to a pleading Mother styled as a motion to dismiss or, in the alternative, plea to the jurisdiction. In six orders signed in 2016, the trial court altered the March 2014 order by (1) removing all factual findings discussing the grounds for dismissal; and (2) changing the March 2014 order to state that only Mother's "Motion to Dismiss is granted."

         Father timely appealed the trial court's six 2016 orders. Father asserts that the changes effected by the trial court's 2016 orders go beyond the authorized reach of a nunc pro tunc judgment under Texas Rules of Civil Procedure 316 and 329b(f) because the 2016 orders impermissibly remedied judicial errors rather than mere clerical errors.

         The six 2016 orders exceeded the bounds of a permissible nunc pro tunc judgment because they made substantive and material changes to the March 2014 order. We therefore vacate the trial court's six 2016 orders and reinstate the March 3, 2014 order dismissing all claims in the suit.

         Background

         I. Suit Affecting the Parent-Child Relationship and the March 2014 Order

         Mother filed suit seeking a divorce from Father in 2005. Her divorce petition requested that the parties be appointed joint managing conservators for their two children.

         The appellate record does not contain a final divorce decree or otherwise show when the petition for divorce was resolved; the record similarly does not show what custody arrangements were established following the parties' divorce. The record shows only that the parties continued to litigate modifications of custody arrangements.

         After the 2005 divorce filing, the next entry in the record is the parties' January 6, 2012 mediated settlement agreement. The settlement agreement indicates that it modified the trial court's April 28, 2009 court order establishing conservatorship, possession, and access guidelines for the parties and their children. The trial court's April 28, 2009 order is not included in the record. The settlement agreement provided that Father would be liable for the legal fees attributable to the children's amicus attorney as well as Mother's attorney, Steven Engelhardt.

         Mother filed in January 2012 a second amended emergency motion to modify the parent-child relationship, an application for a temporary restraining order, and a request for temporary orders and injunctions, citing events that transpired after the parties executed the settlement agreement. Mother's second amended emergency motion to modify sought to amend the trial court's July 22, 2009 custody order, which is not included in the record.

         The trial court signed an agreed order to modify the parties' child custody arrangements on February 9, 2012. The agreed order incorporated by reference the parties' January 2012 settlement agreement and granted in part the agreement's requested modifications. The agreed order included a Mother Hubbard clause stating that "all relief requested in this case and not expressly granted is denied." The agreed order did not mention or otherwise purport to resolve the issues raised in Mother's second amended emergency motion to modify.

         Shortly thereafter, the trial court severed Mother's second amended emergency motion to modify into a separate action, and signed an emergency temporary order to modify the parent-child relationship. The trial court's emergency temporary order granted in part the relief requested in Mother's second amended emergency motion to modify and limited Father's interaction with the children to periods of supervised access.

         The parties continued to litigate custody arrangements in the severed action. Following the emergency temporary order, Father filed an amended counter-petition for modification of conservatorship and a motion for sanctions against Mother. Father filed a second amended counter-petition in December 2013.

         The present dispute focuses on events that transpired after Mother filed a notice of nonsuit in the severed action in January 2014. In conjunction with the notice of nonsuit, Mother filed a motion to dismiss and alternative plea to the jurisdiction seeking the dismissal of Father's counterclaims in the severed action. Contending that "[t]he court is without jurisdiction to entertain" Father's claims, Mother's motion asserted that "[t]here is no issue surviving the February 9, 2012 entry that can now be tried." The trial court held a hearing; it orally denied Mother's motion to dismiss and alternative plea to the jurisdiction.

         Kelly L. Fritsch, the children's amicus attorney, filed a motion in the severed action on January 27, 2014, seeking a partial dismissal of Father's conservatorship claims. Fritsch asserted that Father failed to file an affidavit as necessary to modify a conservatorship order less than one ...


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