in Re: Cindy Schoelpple

Petition for Writ of Mandamus Denied and Memorandum Opinion filed February 8, 2007

Petition for Writ of Mandamus Denied and Memorandum Opinion filed February 8, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-01038-CV

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IN RE CINDY SCHOELPPLE,

 Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M  O P I N I O N

On November 30, 2006, relator Cindy Schoelpple filed a petition for writ of mandamus in this court, requesting we compel respondent, the Honorable James Squier, presiding judge of the 312th District Court, Harris County, Texas, to vacate an order granting grandparent access, signed on July 14, 2005.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see  also  Tex. R. App. P. 52.1. For the reasons set forth below, we deny relator=s petition. 

Background

Relator filed a divorce action in Harris County on June 24, 2004, which included a request for custody of, and support for, her daughter.  On October 22, 2004, real party James Schoelpple, the child=s maternal grandfather, filed an AOriginal Petition in Intervention of Grandparent for Conservatorship and Petition for Grandparent=s Access,@ requesting appointment as possessory conservator and possession of and access to the child.  On November 15, 2004, relator and her then-husband, David Mora, filed notices of nonsuit, stating they were attempting to reconcile.  The trial court signed a dismissal order as to the divorce petition shortly thereafter.  On June 15, 2005, relator filed a divorce action in Cherokee County,^[1] but did not disclose the Harris County suit. 

Following the nonsuit, the Harris County court proceeded on real party=s petition.  A trial was conducted^[2] and, on July 14, 2005, an agreed order was entered, granting real party access to the child (Aagreed access order@).^[3]  Real party subsequently filed a motion to enforce the agreed access order in the Harris County court, and relator filed a motion to dismiss for want of jurisdiction. Respondent signed an order denying relator=s motion to dismiss on October 27, 2006, and relator challenges that order in this mandamus proceeding.^[4]

Discussion

In her mandamus petition, relator argues the agreed access order is void, contending that when she and Mora nonsuited the divorce action, there was no longer a suit in which real party could intervene.  She asks this court to compel respondent to dismiss the agreed access order as void.  

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law.  See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).  If a court issues a void order, the relator need not show it does not have an adequate appellate remedy, and mandamus relief is appropriate.  In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). 

A void judgment results when the trial court had (1) no jurisdiction over the parties or subject matter, (2) no jurisdiction to render the judgment, or (3) no capacity to Aact as a court.@  Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (citing Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987)); In re Sheppard, 193 S.W.3d 181, 186 (Tex. App.CHouston [1st Dist.] 2006, orig. proceeding [mand. denied]).  If the court=s action is contrary to a statute or statutory equivalent that is not jurisdictional, the judgment is voidable as opposed to void and is corrected through the customary appellate process.  Reiss, 118 S.W.3d at 443; In re Sheppard, 193 S.W.3d at 186. 

Given the procedural posture of this case and relator=s argument, the issue here is whether the nonsuit divested the Harris County court of jurisdiction over real party=s petition.  See Reiss, 118 S.W.3d at 443; Armentor v. Kern, 178 S.W.3d 147, 149 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (defining a collateral attack on a judgment).

A.        Standing to Seek Access 

Pursuant to the provisions in the Texas Family Code applicable to this case,  a

 grandparent may file an original suit affecting the parent-child relationship (ASAPCR@)^[5] to request access to a grandchild Awithout regard to whether the appointment of a managing conservator is an issue in the suit.@  See Acts of 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws 157 (amended 2005) (current version at Tex. Fam. Code Ann. ' 153.432 (Vernon Supp. 2006)).^[6] Section 102.004(b) provides that a grandparent cannot file an original suit seeking possessory conservatorship, but may intervene in a pending suit if certain evidence is met.  See Acts of 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws 125 (amended 2005) (current version at Tex. Fam. Code Ann. ' 102.004(b) (Vernon Supp. 2006)).^[7] In his petition, real party sought both possessory conservatorship under section 102.004 and access under section 153.432, thus utilizing the two methods available under the Family Code to obtain access to his grandchild.  See id. '' 102.004(b), 153.432; see also In re C.M.C., 192 S.W.3d 866, 871 n.6 (Tex. App.CTexarkana 2006) (noting grandparents have several methods available to obtain access to grandchildren under Texas=s Family Code).  Consequently, even assuming without deciding that real party=s intervention in the pending divorce suit was negated by the nonsuitBBwhich requires a further assumption that the request for possessory conservatorship is not a request for affirmative reliefBBthis does not necessitate the conclusion that real party=s petition for access under section 153.432 was similarly negated.  See In re D.D.M., 116 S.W.3d 224, 232 (Tex. App.CTyler 2003, no pet.) (stating, where underlying SAPCR order was dismissed, the trial court retained jurisdiction over foster parents intervening for joint managing conservatorship because they sought independent, affirmative relief).^[8]

Further, any party may intervene in a suit by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party. Tex. R. Civ. P. 60; In re D.D.M., 116 S.W.3d at 231.  AUpon filing of the petition, an intervenor becomes a party to the suit for all purposes,@ and if a party is nonsuited or dismissed, a party=s claim for affirmative relief is not prejudiced.   In re D.D.M., 116 S.W.3d at 231.  A claim for affirmative relief is one that allows the intervenor to recover relief despite plaintiff=s abandonment or failure to establish a claim.  Id. at 232.  Section 153.432 expressly allows a grandparent to seek access of a grandchild independent of a suit for managing conservatorship and, consequently, real party=s request for access, as a claim for affirmative relief, survived the nonsuit.  See Tex. Fam. Code Ann. ' 153.432(b); In re D.D.M., 116 S.W.3d at 231.

Conclusion

In sum, relator has failed to establish that she is entitled to the requested relief. Accordingly, we deny relator=s petition for writ of mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion filed February 8, 2007.

Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

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^[1]A final divorce decree was signed by the Cherokee County court on June 7, 2006.

^[2]This court was not furnished with a copy of the transcript from the trial. 

^[3]The agreed access order contains the statutory notices required under section 105.006 of the Family Code, AContents of a Final Order.@  See Tex. Fam. Code Ann. ' 105.006 (Vernon Supp. 2006).  Further, it was entered in the case as a default judgment and states, in part, that (a) the court had jurisdiction of the case and the parties, (b) Ano other court has continuing, exclusive jurisdiction,@ and (c) Aall relief requested in this case and not expressly granted is denied.@

^[4]Relator also filed a motion to transfer the case to Cherokee County, which real party alleges was denied; however, relator does not challenge that ruling in this original proceeding.  See Tex. Fam. Code Ann. ' 155.201 (setting out circumstances for mandatory transfer).    

^[5]A SAPCR is defined in the Family Code as follows: A>Suit affecting the parent‑child relationship= means a suit filed as provided by this title in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent‑child relationship is requested.@  Id. ' 101.032(a) (Vernon 2002) (emphasis added).  

^[6]Section 153.432 was amended effective September 1, 2005 to permit a grandparent to file an original suit to request Apossession of@ or access to a grandchild.  See Tex. Fam. Code Ann. ' 153.432 (Vernon Supp. 2006).  The previous version of the statute applies in this case.  See id.

^[7]Section 102.004(b) was amended effective June 1, 2005; the amendments apply to original suits filed on that date or thereafter.  See ' 102.004 historical note (Vernon Supp. 2006).  The previous version of the statute applies to this case. 

^[8]In support of her argument, relator relies on two cases dealing with the death of a spouse during a pending divorce.  See Griggs v. Latham, 98 S.W.3d 382 (Tex. App.CCorpus Christi 2003, pet. denied); Smelscer v. Smelscer, 901 S.W.2d 708 (Tex. App.CEl Paso 1995, no writ).  However, those cases are distinguishable because, here, relator is asserting a collateral attack on the agreed access order and our review is limited to the Harris County court=s jurisdiction to render that order.  Also, although relator asserts that real party was unable to intervene and petition for access within one pleading, she did not cite, nor did we find, authority to support that statement.