David Asher Gaige, as Next Friend of Daniel Arland Gaige v. Angela May Gaige and David Asher Gaige, Pro Se ( 2006 )

Opinion issued February 2, 2006.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-04-00745-CV

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DAVID ASHER GAIGE AS NEXT FRIEND OF D.A.G., Appellant

V.

ANGELA MAY GAIGE, Appellee

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On Appeal from the 257th District Court

Harris County, Texas

Trial Court Cause No. 2003-39463

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MEMORANDUM OPINION

          This is an appeal from a motion to dismiss for lack of jurisdiction rendered in favor of appellee, Angela May Gaige. Appellant, David Asher Gaige as next friend of D.A.G., filed a bill of review regarding a divorce proceeding between Angela and David Gaige. The divorce decree included a suit affecting the parent child relationship (“SAPCR”), and the bill of review asserts the divorce court did not have subject matter jurisdiction to render the SAPCR because Angela and David are not the adoptive or biological parents of D.A.G. as defined by section 101.024 of the Texas Family Code. In dismissing the bill of review for lack of jurisdiction, the trial court found that David lacks capacity and standing to bring the bill of review on behalf of D.A.G. and that D.A.G. lacks capacity and standing to bring the bill of review. We affirm.

BACKGROUND

          In 1996, during Angela and David’s marriage, Angela’s sister, Opal Jones, gave birth to D.A.G. In 2001, David signed an acknowledgment of paternity even though he now contends he is not D.A.G.’s biological father.

          In April 2002, Angela filed an original petition for divorce and alleged within that D.A.G. was a child of the marriage despite never instituting formal adoption proceedings. Opal Jones was not given notice regarding the divorce proceedings, and no attorney ad litem or guardian was appointed to represent D.A.G. Angela and David signed the final divorce decree in October 2002 and consented to the form and substance of the decree. The decree found that D.A.G. was a child of the marriage and provided that Angela and David serve as joint managing conservators. The bulk of the rights went to Angela, who was granted the exclusive rights and duties such as establishing the primary residence of the child, consenting to invasive medical procedures and psychological treatment, reserving and giving receipt for periodic payments of support for D.A.G., representing the child in legal actions, consenting to marrying and enlistment in the armed forces, and making decisions concerning the child’s education. David was ordered to pay $500.00 a month in child support. No motion for new trial or appeal was filed.

          In July 2003, David filed a bill of review as next friend of D.A.G. asserting that Angela fraudulently named D.A.G. as a child of the marriage, that the divorce decree naming Angela as a parent effectively terminated the parental rights of Opal Jones, that the failure to serve Opal Jones and the true biological father violated both their constitutional due process rights, and that naming Angela and David as D.A.G’s parents is not in the best interest of the child. Angela filed a motion to dismiss the bill of review for lack of jurisdiction asserting (1) that David had no standing to file the bill of review as next friend of D.A.G. because Angela was granted exclusive rights to represent D.A.G. in legal actions, and (2) that D.A.G. was not a party to the divorce proceedings and had no standing to file the bill of review. The trial court granted the motion to dismiss and found that David lacks standing and capacity to bring this bill of review as next friend of D.A.G., and that D.A.G. lacks standing and capacity to bring this bill of review. The trial court also ordered David to pay Angela’s attorney’s fees.

DISCUSSION

          Appellant presents multiple issues for review, and several of those relate to the merits of the bill of review. Although the merits of the bill of review have been urged by the parties, they are not before this Court. The only issues before this Court are whether the David as next friend of D.A.G. and D.A.G have standing to bring this bill of review, and whether the trial court erred in awarding Angela’s attorney’s fees. These issues must be resolved without considering the validity of the underlying divorce decree and SAPCR. See Durham v. Barrow, 600 S.W.2d 756, 760 (Tex. 1980). Because we agree with Angela, we address only whether David has standing to bring this bill of review as next friend of D.A.G.

          Section 153.071 of the Texas Family Code provides that, when both parents are appointed as conservators of the child, the court shall specify the rights and duties of the parents that are to be exercised by each independently, by joint agreement of the parents, and exclusively by one parent. Tex. Fam. Code Ann. § 153.071 (Vernon 2002). Here, the divorce decree names both Angela and David as joint managing conservators. In three sections, the court defines 1) those rights and duties that Angela and David shall have at all times, 2) those rights and duties that Angela and David shall have during their respective periods of possession, and 3) those rights and duties that Angela shall exercise exclusively. Among those rights and duties that Angela shall exercise exclusively is the right to represent the children in legal actions and to make other decisions of substantial legal significance. Angela asserts that, because the court granted the right to bring legal actions exclusively to her, not David, David has no standing to bring this bill of review as next friend of D.A.G.

          In Davis v. Davis, Howard and Barbara Davis divorced, and Barbara was granted the power to represent their children in legal actions and to make other decisions of substantial legal significance. 734 S.W.2d 707, 708, 710 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d). Howard subsequently brought suit as next friend for his two minor sons. Id. at 710. The court held that, because Barbara was granted the exclusive right to bring legal actions and because Howard did not allege that the conservatorship order had been modified, Howard did not have standing to bring this suit as next friend for his sons. Id. In the present case, David did not allege that the divorce decree had been modified and attempts to exercise a right granted exclusively to Angela. We conclude that David does not have standing to bring this bill of review as next friend of D.A.G. and affirm the trial court’s judgment dismissing the bill of review for lack of jurisdiction.

          We next address whether the trial court erred in awarding Angela’s attorney’s fees. Without providing any citations to authorities, David presents three conclusory statements: (1) “Angela should not be reimbursed her attorney fees and in effect compensated for her fraudulent representations concerning [D.A.G.]’s parentage,” (2) “David should not be punished for calling to the court’s attention on behalf of [D.A.G.] Angela’s fraud as well as the procedural and constitutional irregularities surrounding the SAPCR,” and (3) “if the SAPCR is void for failure to serve the necessary party, David should not be punished for calling the court’s attention to avoid SAPCR determination.” Because David provides no argument or authorities aside from these conclusory statements, we conclude David has waived this issue. Tex. R. App. P. 38.1(h); J.B. Custom Design and Bldg. v. Clawson, 794 S.W.2d 38, 41 (Tex. App.—Houston [1st Dist.] 1990, no writ).

CONCLUSION

Accordingly, we affirm the judgment of the trial court.

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Alcala.