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In re G.E.D.

Court of Appeals of Texas, Fifth District, Dallas

January 2, 2018

IN THE INTEREST OF G.E.D., A CHILD

         On Appeal from the 470th Judicial District Court Collin County, Texas Trial Court Cause No. 470-51847-2008

          Before Justices Francis, Myers, and Whitehill Opinion by Justice Whitehill

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE.

         This case involves an order modifying the custody arrangement among Mother, Father, and their eight-year-old daughter G.E.D. The prior order gave Mother the exclusive right to designate G.E.D.'s primary residence within Tarrant County, Collin County, or a county contiguous to Collin County. The modification order gave Father the exclusive right to designate G.E.D.'s primary residence within Dallas County or a contiguous county. Mother appeals the modification order in three issues.

         Mother's first issue contends that the trial court lacked jurisdiction to render its modification order because the prior custody order was then on appeal to this Court. Her second and third issues attack the sufficiency of the evidence to support certain trial court findings. We affirm because (i) our precedent holds that Mother's pending appeal did not negate the trial court's jurisdiction to enter the subsequent modification order and (ii) there was some evidence on which a reasonable trial judge could have decided the case as did the trial court here.

         I. Background

         G.E.D. was born to Mother and Father in 2008. Mother and Father later divorced.

         In early 2016, Father sought to modify the parent-child relationship. The matter was tried without a jury on July 6, 2016. The trial judge rendered a SAPCR memorandum ruling that day but did not sign a written order until August 16, 2016. The order granted Father's requested relief by (i) requiring that G.E.D.'s residence be established in Collin County, a contiguous county, or Tarrant County as long as Father lived in one of those counties and (ii) imposing an expanded standard possession order. Mother appealed that order, and we docketed that appeal as No. 05-16-01285-CV, which is still pending.

         In October 2016, Father filed a motion to enforce the trial court's SAPCR order. He alleged that Mother had not established G.E.D.'s residence in a permitted county and had wrongfully withheld G.E.D. from Father on 17 different days. He further alleged that Mother had moved with G.E.D. to Katy, Texas, and had hidden her from Father.

         Father's enforcement motion was set for hearing on December 12, 2016. When the hearing began, the parties told the court that they had reached an agreement.[1] Father testified that he and Mother had agreed, among other things, that (i) Father and Mother would remain G.E.D.'s joint managing conservators, (ii) Father would have the exclusive right to designate G.E.D.'s primary residence within Dallas County or a contiguous county, and (iii) Mother would have standard visitation for parents living over 100 miles from a child. The court asked for clarification of whether the parties intended a temporary modification or a new final order, and counsel for both sides agreed that it would be a new final order. The judge then said, "And I have rendered those [agreement terms] as the orders of this court, so neither side can revoke after today."

         Four days after the hearing, Father filed a new petition to modify parent-child relationship. The petition sought an order giving Father the right to determine G.E.D.'s primary residence.

         About two weeks later, Father filed a motion to enter final order incorporating the parties' agreement.

         Mother answered Father's petition to modify with a general denial, and soon thereafter she filed a combined motion to withdraw her consent to the agreement and, in the alternative, motion to modify any order resulting from the parties' alleged agreement. She supported the motion with her declaration asserting that she signed the December 12 agreement under duress.

         Mother then filed an "Opposition to Motion to Enter Final Order, " arguing that the trial court should not render an order based on the parties' agreement. She contended, among other things, that the parties' written Rule 11 agreement (which was attached to her Opposition) was unclear and ambiguous.

         On January 27, 2017, the trial court held a hearing on Father's motion to enter order. Both parents testified. At the end of the hearing, the judge concluded that Mother did not revoke the Rule 11 agreement before the court rendered judgment on it. The judge then signed a final order reducing that judgment to writing. The order made the parents joint managing conservators and gave Father the exclusive right to determine G.E.D.'s primary residence within Dallas County or a contiguous county. The order also contained a standard possession order giving Mother possession of G.E.D. for one weekend per month if she lived more than 100 miles away from G.E.D.'s residence.

         The judge later signed findings of fact and conclusions of law stating, among other things, that:

• "The parties entered into a written agreed parenting plan containing provisions for conservatorship and possession of the child and for modification of the parenting plan."
• "The circumstances of the child and the conservators had materially and substantially changed since the date of the rendition of the order modified."
• "The agreed parenting plan was in the child's best interest." Mother timely appealed.

         II. Analysis

         A. Issues Presented

Mother presents three issues:
1. Was the trial court's January 27, 2017 final order void for lack of jurisdiction because of Mother's prior appeal from the August 16, 2016 final order?
2. Was the evidence legally and factually insufficient to support a finding that circumstances had materially and substantially changed since August 16, 2016?
3. Was the evidence legally and factually insufficient to support a finding that giving Father the exclusive right to designate G.E.D.'s primary residence was in G.E.D.'s best interest?

         B. Issue One: Did the prior pending appeal deny the trial court jurisdiction to render the subsequent modification order?

         Mother's first issue attacks the trial court's jurisdiction to render the modification order signed on January 27, 2017.

         1. Error Preservation

         Mother does not assert that she raised her jurisdictional complaint in the trial court, and we have not found anything in the record suggesting she did so. But as a general rule "[j]urisdiction may be raised for the first time on appeal and may not be waived by the parties." Univ. of Houston v. Barth, 313 S.W.3d 817, 818 (Tex. 2010) (per curiam). So we address Mother's argument.

         2. Analysis

         Mother relies on the general rule that a trial court loses jurisdiction over a controversy once an appeal is perfected, provided that the trial court retains plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment for 30 days after signing the judgment, or 30 days after certain timely postjudgment motions are overruled. See Tex. R. Civ. P. 329b(d), (e); In re Norris, 371 S.W.3d 546, 550 (Tex. App.-Austin 2012, orig. proceeding). According to Mother, the January 27, 2017 final order was signed outside the trial ...


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