in the Interest of W.G.O. III, a Minor Child ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00059-CV
In the Interest of W.G.O. III, a minor § From the 360th District Court
child
§ of Tarrant County (360-394038-05)
§ January 10, 2013
§ Opinion by Justice Walker
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Sue Walker
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00059-CV
IN THE INTEREST OF W.G.O. III,
A MINOR CHILD
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FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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This is an appeal from a January 11, 2012 ―Final Order of Modification in
Suit Affecting the Parent-Child Relationship.‖ Appellant—W.G.O. III’s mother
(Mother)—raises four issues on appeal.2 Appellee is W.G.O. III’s father (Father).
For the reasons set forth below, we will affirm.
1
See Tex. R. App. P. 47.4.
2
Mother’s issues are as follows:
2
This appeal presents a tortured procedural background: the trial court
signed multiple decrees and multiple sets of temporary orders all prior to hearing
Father’s motion to modify. Mother’s first three issues on appeal are premised on
her assertion that––for a variety of reasons––a September 6, 2007 ―Agreed Final
Decree of Divorce‖ became final before the trial court signed a November 30,
2009 ―Final Decree of Divorce‖ so that Father’s September 2010 motion to
modify the parent-child relationship and the trial court’s January 11, 2012 order
1. Mother was entitled to a declaration under the Texas
Uniform Declaratory Judgment Act[] that the 2007 Decree was the
valid final order, and the trial court erred when it denied Mother’s
MSJ, because, as a matter of law, the 2007 Decree is the valid, final
judgment.
2. The trial court erred when it made further orders after
expiration of its plenary power on December 20, 2007, and all orders
of the trial court from December 20, 2007 until September 12 or 14,
2010, when jurisdiction was re-acquired, are void because the trial
court did not have jurisdiction over the parties or the claims; thus, it
was harmful error when, on the date of nonjury trial, the trial court
denied Mother’s MSJ requesting clarification of jurisdiction.
3. Mother did not have adequate notice that trial would
proceed on Father’s Motion to Modify and not her Motion to Enforce;
thus, Mother was deprived of due process, as well as her
constitutional and statutory rights of access to the courts and to have
a jury.
4. The trial court’s failure to file findings of fact and
conclusions of law has harmed Mother because if the trial court was
correct in granting Father’s Motion to Modify, Mother is not able to
determine from the record the bases [sic] for the court’s rulings, and
this Court should remand to the trial court and order preparation and
filing of the requested findings and conclusions.
3
on Father’s motion to modify the parent-child relationship can only modify the
2007 decree, not the 2009 decree.
Mother concedes that the trial court possessed jurisdiction to hear Father’s
motion to modify and to sign the January 11, 2012 order modifying the parent-
child relationship. The January 11, 2012 order modifying the parent-child
relationship––the order from which this appeal was perfected–––sets forth
various terms for Mother’s and Father’s conservatorship and support of W.G.O.
III, including the rights and duties of Mother and Father concerning W.G.O. III
and Mother’s and Father’s rights to access and possession of W.G.O. III. Mother
raises no challenges to and makes no complaints concerning the January 11,
2012 order modifying the parent-child relationship, other than that it should have
modified the 2007 decree instead of what Mother contends is the void 2009
decree. But Mother does not explain on appeal how or why any of the terms in
the January 11, 2012 order modifying Mother’s and Father’s conservatorship and
support of W.G.O. III would be different if the trial court was modifying the 2007
decree or the 2009 decree.3
3
In the trial court, Mother filed a ―Motion for Partial Summary Judgment as
to Valid Final Decree,‖ which the trial court denied and––the day after Father filed
his motion to modify––a ―Motion for Enforcement of Final Decree, and For
Judgment and Order,‖ seeking enforcement of the 2007 judgment and a
declaratory judgment that the 2007 judgment was ―the only Final Decree of
Divorce . . . in effect.‖ Although in parts of her first three issues Mother raises
complaints concerning the trial court’s rulings and failure to rule on these
motions, we need not address these contentions by Mother because they are not
necessary to our final disposition of this appeal; the trial court’s ruling or its failure
to rule on whether the 2007 or the 2009 judgment was the final judgment does
4
Mother relies heavily on the case of In re Lovito-Nelson, 278 S.W.3d 773,
775 (Tex. 2009) (orig. proceeding). But Lovito-Nelson was an original
proceeding in which the supreme court held that a motion for new trial may be
granted only by a written, signed order and that in the absence of a written,
signed order granting a new trial, the trial court’s judgment in Lovito-Nelson had
become final. Id.4 As previously mentioned, the order appealed from here is the
January 11, 2012 order modifying the parent-child relationship; Mother raises no
complaints concerning the terms of the modification order and has not argued
that the terms of the modification order would have been different if it were
modifying the 2007 decree instead of the allegedly void 2009 decree. 5 Lovito-
Nelson, if relevant, is relevant only to Mother’s finality argument; Mother’s finality
not impact whether the modifications made by the January 11, 2012 ―Final Order
of Modification in Suit Affecting the Parent-Child Relationship‖––the order
appealed here––were proper. See Tex. R. App. P. 47.1 (requiring appellate
court to address only issues necessary to final disposition of the appeal). In fact,
the parties concede the trial court possessed jurisdiction to sign the modification
order and make no complaints concerning its terms.
4
Mother previously filed a petition for writ of mandamus with this court after
the trial court signed a written order granting Father’s motion for new trial
following the entry of the 2007 judgment; a different panel of this court denied her
petition, and she did not seek relief from the Texas Supreme Court. See In re
Osborne, No. 02-08-00127-CV, 2008 WL 1777864, at *1 (Tex. App.—Fort Worth
Apr. 17, 2008, orig. proceeding) (mem. op.).
5
If Mother had challenged the merits of the modification order, we would
review it under an abuse of discretion standard. See, e.g., Gillespie v. Gillespie,
644 S.W.2d 449, 451 (Tex. 1982) (recognizing that trial court’s order modifying
conservatorship is reviewed under an abuse of discretion standard); In re
M.N.G., 113 S.W.3d 27, 32 (Tex. App.––Fort Worth 2003, no pet.) (same).
5
argument concerning the 2007 decree has no bearing on the propriety of the
January 11, 2012 modification order appealed from here. We overrule Mother’s
first two issues and the portion of her third issue raising her finality arguments.
Also in her third issue, Mother complains that the trial court should have
granted her motion for continuance of the hearing on Father’s motion to modify.
In her motion for continuance, Mother asserts that the trial court should grant her
motion for summary judgment and declaratory judgment, both seeking a ruling
that the 2007 decree was the final decree and that she wanted to call a teacher
from Antlers, Oklahoma, as a witness and that the teacher was unavailable at the
time set for trial. The motion for continuance indicates that the teacher would
testify about the quality of the Choctaw Nation school in Antlers, Oklahoma, and
her observations of Mother and Mother’s family. A trial court’s action in granting
or denying a motion for continuance will not be disturbed on appeal unless the
record discloses an abuse of discretion. See Gen. Motors Corp. v. Gayle, 951
S.W.2d 469, 476 (Tex. 1997) (orig. proceeding); Sw. Country Enters., Inc. v.
Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.—Fort Worth 1999, pet.
denied). The entire record must be examined in a review for abuse of discretion
regarding a motion for continuance. Garza v. Serrato, 699 S.W.2d 275, 281 (Tex.
App.—San Antonio 1985, writ ref’d n.r.e.). Mother does not argue that the trial
court abused its discretion by denying her motion for continuance; she argues
that she was ―deprived of her opportunity to present her case fully in the
modification (or adjudication) of the residence and conservatorship issues, [and
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was] thus denied her constitutional right to a jury, due process, and to petition for
a redress of grievances.‖ Mother and Father were the only two witnesses at the
modification trial. We have thoroughly reviewed the entire record, and we cannot
conclude that the trial court abused its discretion by denying Mother’s motion for
continuance. The record shows that Father has always lived in Texas; that
W.G.O. III was in kindergarten at the time of the modification hearing and that he
had always attended school in Texas; and that Mother moved back and forth
between Texas and Antlers, Oklahoma, where she had family and a support
system. The quality of the Choctaw Nation schools available to W.G.O. III in
Antlers, Oklahoma, both in terms of education and culture, was not in dispute.
We hold that the trial court did not abuse its discretion by denying Mother’s
motion for continuance.
To the extent Mother’s third issue also encompasses a claim that she was
entitled to a jury trial because she paid a jury fee, Mother waived that right by
failing to object to proceeding without a jury when the case was called for trial. 6
See Walker v. Walker, 619 S.W.2d 196, 198 (Tex. Civ. App.––Tyler 1981, writ
ref’d n.r.e.) (explaining that even if jury demand was made and jury fee paid,
party waives right to jury when he fails to object to proceeding without a jury
when the case is called to trial; after the trial court rules adversely to a party, he
6
Mother’s motion for continuance is titled ―Motion for Continuance of
12/17/10 Nonjury Trial Setting,‖ showing that Mother understood the case was to
be tried without a jury.
7
cannot complain that he was entitled to have a jury, not the court, decide the fact
question). We overrule the remainder of Mother’s third issue.
In her fourth issue, Mother complains that the trial court erred by not
making findings of fact and conclusions of law after it signed the January 11,
2012 ―Final Order of Modification in Suit Affecting the Parent-Child Relationship.‖
In her brief and in oral argument, Mother argues that findings of fact and
conclusions of law are necessary to enable her to determine why the trial court
concluded that the 2009 judgment was the final judgment, not the 2007
judgment. Findings of fact and conclusions of law from the trial court concerning
its reasoning in determining that the 2009 judgment was the final judgment will
not impact or alter our analysis in this opinion. Mother has raised no issue
challenging the merits of the January 11, 2012 ―Final Order of Modification in Suit
Affecting the Parent-Child Relationship.‖ Her only challenge to the modification
order is that it recites that it is modifying the 2009 judgment instead of modifying
the 2007 judgment.7 That recitation in the modification order does not, however,
7
Moreover, the trial court stated on the record its reasons for determining
that the 2009 judgment was the final judgment. It stated,
All right. I don’t know if the lawyers have seen it, but Judge
Lehrmann, back on April 9th, 2008, heard a hearing just on this
matter, [the finality of the 2009 judgment,] and has a very extensive
docket entry explaining why the 2007 order and the 2009 orders are
in play and their roles in this case.
So you’re more than welcome, folks, later on to look at her
determination that this court can sign a[n] order in 2009 which
superseded the ’07. And I’m going to go ahead and take judicial
8
even if erroneous, constitute reversible error. See Tex. R. App. P. 44.1(a)
(authorizing reversal in a civil case only when error ―probably caused the
rendition of an improper judgment‖). That is, Mother has not raised any
complaint concerning any term of the modification order or argued that the trial
court abused its discretion in any way by signing the modification order; thus,
even if the modification order’s recitation of which judgment is being modified is
erroneous, Mother has not shown or attempted to argue that the erroneous
recitation was calculated to cause or did cause any error in the terms of the
modification order. Consequently, the lack of findings of fact in this appeal is
harmless because the only issues raised by Mother concern the finality of the
2007 judgment; Mother does not allege that she was prevented from making a
proper presentation of any challenge to the merits of the modification order and
in fact asserts no complaint at all concerning the merits of the modification order.
See, e.g., Wagner v. Riske, 178 S.W.2d 117, 120 (Tex. 1944) (explaining that
trial court’s failure to make properly requested findings of fact and conclusions of
law ―will not call for a reversal of the trial court’s judgment, if the record before the
appellate court affirmatively shows that the complaining party has suffered no
injury‖); Stubbs v. Stubbs, 715 S.W.2d 373, 374–75 (Tex. App.—Houston [1st
Dist.] 1986, no writ) (same). Because the trial court’s failure to make findings of
fact and conclusions of law is harmless in this appeal, we decline to abate the
notice of that order that was signed in 2009 by Judge Lehrmann,
who is now Justice Lehrmann.
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appeal for findings of fact and conclusions of law. We overrule Mother’s fourth
issue.
Having overruled the portions of Mother’s four issues necessary to final
disposition of this appeal, we affirm the trial court’s January 11, 2012 order
modifying the parent-child relationship. See Tex. R. App. P. 47.1.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: January 10, 2013
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