in the Interest of B.U. and K.U., Children ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00051-CV
IN THE INTEREST OF B.U. AND
K.U., CHILDREN
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2006-20830-158
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MEMORANDUM OPINION1
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In nine issues, pro se appellant B.U. brings a litany of complaints about pro
se appellee R.E., her trial attorney, the trial court judge, the trial court’s orders,
and this court in this contentious suit affecting the parent-child relationship
1
See Tex. R. App. P. 47.4.
(SAPCR) involving modification of child support and possession.2 We affirm the
trial court’s judgment.
In his sixth issue and interrelated to his second, third, fourth, and fifth
issues, B.U. argues that the trial court lacked jurisdiction to decide “these
matters” by virtue of the mediation clause in the parties’ agreed parenting plan,
which he claims deprived R.E. of standing.
Standing is a component of subject matter jurisdiction. Tex. Ass’n of Bus.
v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). If a party lacks
standing to bring an action, then the trial court lacks subject matter jurisdiction to
hear the case. Id. at 444–45. If a court lacks subject matter jurisdiction to hear a
case, then it lacks authority to decide that case. M.D. Anderson Cancer Ctr. v.
Novak, 52 S.W.3d 704, 708 (Tex. 2001). Subject matter jurisdiction cannot be
waived. Clint ISD v. Marquez, 478 S.W.3d 538, 558 (Tex. 2016). We review
standing de novo. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d
637, 646 (Tex. 2004).
Under the family code, a party affected by an order may file a suit for
modification in the court with continuing, exclusive jurisdiction. Tex. Fam. Code
Ann. § 156.002 (West 2014); In re S.A.M., 321 S.W.3d 785, 787 (Tex. App.—
Houston [14th Dist.] 2010, no pet.). In this case, our legislature has conferred
2
B.U. filed a number of motions in this court while the case remained
pending, many of them repeating the arguments in his appellant’s brief. To the
extent that any pending motion is not explicitly addressed in this opinion, it is
DENIED.
2
statutory standing to R.E. as a party affected by the orders sought to be modified.
See S.A.M., 321 S.W.3d at 788. None of the authorities cited by B.U. support his
contention that the mediation clause contained in the agreed parenting plan
deprives R.E. of standing or the trial court of jurisdiction in this case, and we
have found none. We overrule B.U.’s sixth issue and the interrelated parts of his
second, third, fourth, and fifth issues.3
As to the remainder of B.U.’s second, third, fourth, and fifth issues, they all
pertain to the trial court’s authority to issue the temporary orders in this case.
3
B.U. also contends that the trial court’s failure to dismiss R.E.’s pleadings on
April 8, 2014, deprived him of a full, fair, and meaningful final trial, but because
he does not explain how he was deprived of due process when he both appeared
and participated in the temporary orders hearing and in the final trial, we overrule
this portion of his issue as inadequately briefed. See Tex. R. App. P. 38.1(i).
Likewise, his argument that the trial court was “deprived of subject-matter
jurisdiction to decide these matters” when it allegedly failed to follow statutory
procedure on removing the children from his primary custody in its temporary
orders is both legally flawed and moot, and while B.U. could have complained
about the trial court’s actions in an original proceeding while the temporary
orders were in effect, he did not do so. See In re Strickland, 358 S.W.3d 818,
820 (Tex. App.—Fort Worth 2012, orig. proceeding); In re Russell, 321 S.W.3d
846, 853 (Tex. App.—Fort Worth 2010, orig. proceeding [mand. denied]). B.U.
filed two petitions for writ of mandamus in this court on July 29, 2015, and August
27, 2015—after the trial court issued its final order on January 23, 2015—making
it too late for this court to take any action on his temporary orders complaints. Cf.
In re Lennar Homes of Tex. Sales & Mktg., Ltd., No. 02-15-00174-CV, 2015 WL
4366046, at *1 (Tex. App.—Fort Worth July 15, 2015, orig. proceeding). He filed
a third petition for writ of mandamus on August 12, 2016, in which he also
requested a writ of prohibition and a writ of habeas corpus, which was denied on
August 16, 2016, and he filed a fourth petition for writ of mandamus and other
relief using the alias “Hugh Morris” on August 22, 2016, which was denied on
August 23, 2016.
3
Because a final order was rendered in this case, any complaints about the
temporary orders are moot. See Wright v. Wentzel, 749 S.W.2d 228, 234 (Tex.
App.—Houston [1st Dist.] 1988, no writ) (citing Conway v. Irick, 429 S.W.2d 648
(Tex. Civ. App.—Fort Worth 1968, writ ref’d)); see also Mauldin v. Clements, 428
S.W.3d 247, 262 (Tex. App.—Houston [1st Dist.] 2014, no pet.); L.F. v. Dep’t of
Family & Protective Servs., No. 01-10-01148-CV, 2012 WL 1564547, at *14 (Tex.
App.—Houston [1st Dist.] May 3, 2012, pet. denied) (mem. op.). We overrule the
remainder of B.U.’s second, third, fourth, and fifth issues.
In his first issue, B.U. complains that the trial court abused its discretion by
refusing to enter the specific findings of fact and conclusions of law that he
submitted and by instead entering findings and conclusions of its own choosing.
But findings of fact and conclusions of law do not exist to provide the losing party
with an opportunity to rewrite the facts in contradiction of the trial court’s actual
judgment.4 See In re D.H., No. 02-05-00179-CV, 2006 WL 133523, at *1 (Tex.
App.—Fort Worth Jan. 19, 2006, no pet.) (mem. op.). And the trial court is not
required to make findings that are unsupported in the record.5 ASAI v. Vanco
4
Generally, the prevailing party proposes findings of fact and conclusions
to the trial court to support the judgment, although the trial court is not bound to
accept the draft and may make changes or completely rewrite the proposed
document. Grossnickle v. Grossnickle, 935 S.W.2d 830, 837 n.1 (Tex. App.—
Texarkana 1996, writ denied).
5
Additionally, to the extent that B.U. also complains that the trial court filed
its findings and conclusions late, a trial court’s failure to timely file findings and
conclusions is generally remedied when findings and conclusions are filed while
the case is on appeal, as they were here. See Morrison v. Cogdell, No. 02-02-
4
Insulation Abatement, Inc., 932 S.W.2d 118, 122 (Tex. App.—El Paso 1996, no
writ). We overrule B.U.’s first issue.
In his seventh issue, B.U. argues that the trial court abused its discretion
by ordering an award of attorney’s fees as additional child support. But the trial
court’s final order did not award R.E.’s attorney’s fees as additional child support.
Instead, the $20,000 in attorney’s fees were “taxed against [B.U.] as costs.” We
overrule B.U.’s seventh issue.
In his eighth issue, B.U. argues that the evidence is insufficient to support
the $3,500 award for legal representation in the contempt enforcement suit. But
a contempt judgment is not reviewable on ordinary appeal. See Cadle Co. v.
Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth 2001, pet. denied) (op. on
reh’g); see also In re Office of Att’y Gen. of Tex., 215 S.W.3d 913, 915–16 (Tex.
App.—Fort Worth 2007, orig. proceeding). We overrule B.U.’s eighth issue.
In his ninth issue, B.U. complains that there is insufficient evidence to
support the trial court’s January 23, 2015 modification of its December 17, 2014
verbal order on attorney’s fees because R.E. was not present at the hearing on
January 23 and no additional evidence was submitted on that day.
At the December 17, 2014 trial, the trial court heard evidence, including
testimony by R.E. and her attorney regarding the amount and reasonableness of
the attorney’s fees that R.E. had incurred in the case and testimony that such
00261-CV, 2003 WL 21476243, at *1 (Tex. App.—Fort Worth June 26, 2003, no
pet.) (mem. op.).
5
fees would not have been incurred at all if B.U. had stuck with their original
bargain or had been willing to come to a reasonable agreement. At the
conclusion of the evidence, the trial court announced that it would award $20,000
in attorney’s fees, payable as child support. B.U. did not object to the evidence
or cross-examine R.E. or her attorney at trial, nor does he now challenge the
sufficiency of the evidence to support the $20,000 as verbally awarded on
December 17.
R.E. subsequently sought reconsideration of the attorney’s fees award,
requesting that the $20,000 be taxed as costs rather than additional child
support, and the trial court granted R.E.’s motion on January 23. See Tucker v.
Thomas, 419 S.W.3d 292, 293 (Tex. 2013). The January 23 hearing was on
R.E.’s amended motion to reconsider attorney’s fees with regard to the legal
basis to support the attorney’s fees award, not the sufficiency of the evidence to
support them, and the trial court made clear that they were awarded after
watching “the whole ugly, litigious, nonsensical nature of some of these battles
and filings of [B.U.’s].”6 Even assuming that this issue was properly raised and
preserved for review, after considering the record in this case, we hold that the
trial court’s award of attorney’s fees in the amount of $20,000 has sufficient
evidentiary support. See In re W.M.R., No. 02-11-00283-CV, 2012 WL 5356275,
6
The trial court observed at the hearing’s conclusion that the intent of the
fee award was “to address the overwhelming number of frivolous positions and
inappropriate arguments that were taken up by [B.U.] that forced [R.E.] to
spend . . . more than a considerable amount of money.”
6
at *14–15 (Tex. App.—Fort Worth Nov. 1, 2012, no pet.) (mem. op.). We
overrule B.U.’s ninth issue.
Finally, in the remainder of his appellate brief and in numerous filings in
this court, B.U. has asked for relief that this court cannot grant and has filed
motions or documents that attempt to utilize procedures inappropriate to this
forum of appellate review. Therefore, to the extent that B.U. has adequately
briefed any of these unnumbered issues, see Tex. R. App. P. 38.1, we overrule
them. To the extent that R.E. has requested any relief in response to B.U.’s
filings that has not otherwise been addressed herein, we deny that relief as well.
Having overruled all of B.U.’s issues and denied all of the motions filed in this
case, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: WALKER, MEIER, and SUDDERTH, JJ.
DELIVERED: August 25, 2016
7