Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 470th Judicial District Court Collin County,
Texas Trial Court Cause No. 470-51847-2008
Justices Francis, Myers, and Whitehill Opinion by Justice
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.
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.
was born to Mother and Father in 2008. Mother and Father
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.
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.
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. 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
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
two weeks later, Father filed a motion to enter final order
incorporating the parties' agreement.
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.
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
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.
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
• "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.
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
Issue One: Did the prior pending appeal deny the
trial court jurisdiction to render the subsequent
first issue attacks the trial court's jurisdiction to
render the modification order signed on January 27, 2017.
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.
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 ...