In the INTEREST OF P.J.P.R, a Child , 2016 Tex. App. LEXIS 4241 ( 2016 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
IN THE INTEREST OF P.J.P.R, a §
Child.
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No. 08-14-00245-CV
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Appeal from the
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383rd Judicial District Court
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of El Paso County, Texas
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(TC# 2012DCM09060)
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OPINION
Appellant, Elizabeth Renteria, challenges an amended judgment signed by the trial court
five days after its plenary power expired. For the reasons stated below, we dismiss the appeal for
want of jurisdiction, but declare the amended judgment void. This leaves intact the original final
order of April 17, 2014.
FACTUAL SUMMARY
The underlying suit was filed on October 4, 2012. Dina Arlene Perez, the self-described
“step mother” of P.J.P.R., filed the Suit Affecting the Parent Child Relationship (SAPCR)
against the biological mother, Elizabeth Renteria. Dina Perez and Elizabeth Renteria became a
couple in 1987. P.J.P.R. was conceived through artificial insemination and carried to term by
Elizabeth Renteria. Perez and Renteria broke up in 2008, but continued to live together until
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2012. In the suit, Perez sought among other things to be named the joint managing conservator
with the exclusive right to designate the primary residence of the child.
Elizabeth Renteria answered and filed her own counter petition. She asked to be named
the sole managing conservator of the child. She later filed a supplemental counter petition
asserting a fraud claim related to a real estate transaction and warranty deed. The case was filed
in the 383rd District Court whose judge referred the matter to an associate judge. The associate
judge entered interim temporary orders which designated both Perez and Renteria as temporary
joint managing conservators, but gave Renteria the exclusive right to designate the primary
residence “within El Paso County, Texas.”
The associate judge heard the case and apparently announced his intended rulings with
respect to several issues; both parties filed written motions to reconsider. Perez’s motion
complained about the court’s omission of geographic restrictions for the child’s residence. She
claimed that it would be difficult for her to maintain a relationship with the child if the child was
taken out of El Paso County. Renteria’s Motion to Reconsider sought to compel Perez to
execute a special warranty deed, limit Perez’s visitation rights, and limit the kind of movies,
magazines or media that the child could view while in her care.
On April 17, 2014, the district court signed its Order in Suit Affecting the Parent-Child
Relationship. The comprehensive thirty-seven page order addressed the rights of both women as
joint managing conservators, child support, health insurance, and like issues. Renteria was again
given the exclusive right to designate the primary residence of the child but “without regard to
geographic location.” The order contains a Mother Hubbard clause and purports to address all
the issues raised by the parties.
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On May 30, 2014, the associate judge heard both parties’ motions to reconsider. On a
form labeled “Judge’s Miscellaneous Orders” the associate judge recited that both parties
appeared in person and through counsel. It then stated that Perez’s Motion to Reconsider “is
granted: There is a geographic restriction to El Paso, Texas.” The order purports to deny
Renteria’s Motion to Reconsider as to issues of the warranty deed and limitations on visitation
rights. It purports to grant Renteria’s motion to the extent of disallowing either woman from
prohibiting the child from having contact with the other’s parents, or their families, during school
extracurricular activities. Renteria was also to give verification of payments for medical bills
and school tuition, which in turn triggered Perez’s obligation to reimburse Renteria.
These rulings are all handwritten onto the pre-printed form. The associate judge signed
in a blank labeled “Proposed by/Signed and Rendered on” which is followed by a date for the
signature. A place was provided for the presiding judge of the referring court to adopt, sign and
order the matters noted above. That signature blank, however, was not signed. A notice at the
bottom of the form directed the attorneys to “prepare the proposed judgment” and appear on June
18, 2014, “to enter the judgment in this cause.”
The docket sheet does not reflect that either party filed any sort of request for a de novo
hearing to the referring court. The judge of the 383rd did, however, sign a “First Amended
Order in Suit Affecting the Parent-Child Relationship Following Motion to Reconsider” on
August 5, 2014. That order differed from the original order in several respects, including
allowing Renteria the exclusive right to designate the primary residence of the child within El
Paso County (and not without any geographical limitation as per the original order). Renteria
filed her notice of appeal on August 21, 2014.
PLENARY POWER
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In a single issue, Renteria challenges the amended order on the SAPCR because the trial
court had lost jurisdiction over the case by the time the amended order was signed. Perez elected
not to file a brief in reply.
A trial court retains jurisdiction for thirty days after signing a final judgment. See
TEX.R.CIV.P. 329b(d) (“[R]egardless of whether an appeal has been perfected,” trial court retains
“plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within
thirty days after the judgment is signed.”). The parties may extend that plenary power by timely
filing an appropriate post-judgment motion. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10
S.W.3d 308, 310 (Tex. 2000). Here, both parties filed motions to reconsider which would
qualify as a motion to modify, correct, or reform the judgment under Rule 329b(g).
TEX.R.CIV.P. 329b(e), (g). Even though the motions were filed before the date of the final order,
for the purposes of extending the appellate deadlines they are deemed filed immediately
following its entry. TEX.R.CIV.P. 306c (so stating for prematurely filed motions for new trial);
TEX.R.APP.P. 27.2 (“[t]he appellate court may treat actions taken before an appealable order is
signed as relating to an appeal of that order and give them effect as if they had been taken after
the order was signed.”); Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011)
(“Thus, the premature filing rules in civil rule 306c and appellate rule 27.2 apply equally to
motions for new trial or to modify the judgment.”).
Upon the timely filing of a 329b motion, the trial court’s plenary power is extended until
thirty days after the motion is overruled. TEX.R.CIV.P. 329b(e); Faulkner v. Culver, 851 S.W.2d
187, 188 (Tex. 1993). When the trial court does not expressly rule on a 329b motion, the motion
is overruled as a matter of law on the 75th day after the judgment was signed. TEX.R.CIV.P.
329b(c); Cecil v. Smith, 804 S.W.2d 509, 511 (Tex. 1991). Under that scenario, both parties’
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motions for reconsideration would have been overruled by operation of law on July 1, 2014, and
the trial court would have lost jurisdiction over the case after July 31, 2014. Because the
amended order was not signed until August 5, 2014, a mechanical application of these rules
compels a finding that the amended order was signed after the trial court lost its power to do so.
If a trial court’s judgment is altered or amended within the period of its plenary power,
however, the appellate timetable starts anew. Lane Bank Equip. Co., 10 S.W.3d at 313. Thus we
consider whether the associate judge’s order on May 30, 2014 itself altered or amended the
district court’s April order and created a new appellate time table. The May 30 order indeed
recited changes to be made to the April order. But the text of the order convinces us that it was a
proposal that the district court could accept or reject. The order contemplated that a proposed
judgment was to be drafted, replacing the handwritten recommendations of the associate judge,
which in turn were to be presented at a hearing on June 18, 2014 (well within the time frame of
the trial court’s continuing plenary power). Our record is unclear whether that hearing ever
occurred or why the amended order was not signed until August.
The Family Code also compels the conclusion that the associate judge’s May 30, 2014
order does not itself modify the April order. An associate judge’s proposed order is in full force
and effect pending de novo review, but when no request for a de novo hearing is made, “the
proposed order or judgment of the associate judge becomes the order or judgment of the
referring court only on the referring court’s signing the proposed order or judgment.” TEX. FAM.
CODE ANN. § 201.013(b) (West 2014) (emphasis supplied). The referring court never signed the
May 30, 2014 order though a signature blank was included on the order for that purpose.
Another exception might arise under TEX.FAM. CODE ANN. § 201.007(c) (West 2014) which
provides that an “order described by Subsection (a)(14)” constitutes an order of the referring
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court once it is signed by the associate judge. Id. In turn, Subsection (a)(14) includes those
orders “agreed to in writing as to both form and substance by all parties[.]” Id. The May 30,
2014 order has a section for “approvals” which is signed by only one party, and the approval
does not state that it constituted an agreement as to both form and substance.
Consequently, the May 30, 2014 Judge’s Miscellaneous Orders did not modify or amend
the district court’s April 17, 2014 final order and the appellate time tables all ran from April 17,
2014. Because the amended order was not signed until after the trial court’s plenary power had
expired, the amended order was void. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486
(Tex. 1995); see also Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (defining a void
judgment as one rendered when a court has no jurisdiction over the parties or subject matter, no
jurisdiction to render judgment, or no capacity to act as a court). A party affected by a void
judicial action need not appeal, but if an appeal is taken, the appellate court may void any orders
the trial court signed after it lost plenary power and then dismiss the appeal. State ex rel. Latty,
907 S.W.2d at 486; In re T.G., 68 S.W.3d 171, 177 (Tex.App.--Houston [1st Dist.] 2002, pet.
denied).
For these reasons, we grant Appellant’s sole issue, and declare the “First Amended Order
in Suit Affecting the Parent-Child Relationship Following Motion to Reconsider” signed on
August 5, 2014 to be void, leaving intact the April 17, 2014 final order. The appeal is dismissed.
ANN CRAWFORD McCLURE, Chief Justice
April 22, 2016
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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