Katherine R. Warren, as Next Friend of M. H. W., a Minor, Beneficiary of the M.H.W. 2000 Trust v. Andy I. Weiner, Trustee of the M.H.W. 2000 Trust

Opinion issued February 5, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-01077-CV
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KATHERINE R. WARREN, AS NEXT FRIEND OF M.H.W., A MINOR,
BENEFICIARY OF THE M.H.W. 2000 TRUST, Appellant
V.
ANDY I. WEINER, TRUSTEE OF THE M.H.W. 2000 TRUST, Appellee
On Appeal from the Probate Court No. 4
Harris County, Texas
Trial Court Case No. 425578
OPINION
In probate court, Katherine Warren petitioned to modify a trust, granted for
the benefit of her minor son. The probate court dismissed her suit for lack of
subject matter jurisdiction because the trustee parents are divorced and their
obligations to each other and their children were defined in family law
proceedings. Because the probate court had jurisdiction over Warren’s claims, we
reverse.
Background
In 1999, husband and wife Andy Weiner and Katherine Warren had their
third son, M.H.W. The next year, they created an irrevocable trust, calling it the
M.H.W. 2000 Trust, for M.H.W.’s benefit. They named themselves as co-trustees.
Weiner and Warren divorced in 2012. Their divorce decree in part
addressed the M.H.W. 2000 Trust and similar trusts Weiner and Warren had
created for their other children, as follows:
IT IS ORDERED that the following children’s trusts are held in
irrevocable trusts, which shall continue as written, and that each party
will take any and all necessary steps to provide full co-trustee
ownership and control of each such account including the placing of
such accounts in a deposit and withdrawal agreement requiring both
co-trustees to disburse funds . . . .
Since their divorce, Weiner and Warren have disagreed over various aspects of the
management of the children’s trusts; each has accused the other of violating the
trusts’ terms.
In August 2013, Weiner petitioned in family court for a modification of the
parent–child relationship between Weiner and two of his children; by then, the
third child had attained the age of majority. A month later, Warren commenced
this action in probate court, requesting that the M.H.W. 2000 Trust be terminated
and the trust estate distributed to a Uniform Transfers to Minors Act account, with
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Warren as its sole custodian. Alternatively, she asked the probate court to remove
Warren and Weiner as trustees and appoint an independent trustee. She filed her
original petition in her capacity as co-trustee of the M.H.W. 2000 Trust, but later
amended her petition to assert claims only as next friend for M.H.W.
In response, Weiner amended his petition in the family court case to request
that the family court appoint him the exclusive manager of the children’s estates,
including their trusts. He also filed a plea to the jurisdiction, a plea in abatement,
and an answer in the probate court proceeding. Weiner argued that the probate
court lacked subject-matter jurisdiction over Warren’s suit because the family
court has continuing, exclusive jurisdiction over Warren’s claims. In the
alternative, he argued that the probate proceeding should be abated until the family
court ruled on his petition to modify his parent–child relationship with his minor
sons. The probate court granted the jurisdictional plea, and Warren appeals from
its order.
Standard of Review
“Whether a court has subject matter jurisdiction is a question of law that we
review de novo.” City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010);
see also Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex.
2011). In reviewing a trial court’s order on a plea to the jurisdiction, we examine
only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional
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inquiry. State v. Holland, 221 S.W.3d 639, 642–43 (Tex. 2007) (citing Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004)). We
construe the pleadings liberally in favor of the plaintiff. Id.
“[T]he interpretation of a statute [is] a matter of law,” which we review de
novo. Enter. Leasing Co. of Hous. v. Harris Cnty. Toll Rd. Auth., 356 S.W.3d 85,
89 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also State v. Heal, 917
S.W.2d 6, 9 (Tex. 1996).
Applicable Law
The Texas Family Code confers continuing, exclusive jurisdiction in the
family courts over matters relating to the parent–child relationship. TEX. FAM.
CODE ANN. § 155.001(a) (West 2012) (“Except as otherwise provided by this
section, a court acquires continuing, exclusive jurisdiction over the matters
provided for by this title in connection with a child on the rendition of a final
order.”). A family court’s jurisdiction remains exclusive over related later-filed
proceedings: “If a court of this state has acquired continuing, exclusive
jurisdiction, no other court of this state has jurisdiction of a suit with regard to that
child,” with exceptions not relevant here. Id. § 155.001(c). Section 101.032 of the
Family Code provides that a suit affecting the parent–child relationship is a suit “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
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relationship is requested.” TEX. FAM. CODE ANN. § 101.032; see Chalu v.
Shamala, 125 S.W.3d 737, 738 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
In contrast, trusts are regulated by the Estates Code. “In a county in which
there is a statutory probate court, the statutory probate court has jurisdiction of:
(1) an action by or against a trustee; [and] (2) an action involving an inter vivos
trust, testamentary trust, or charitable trust . . . .” TEX. EST. CODE ANN. § 32.006
(West Supp. 2014). “A statutory probate court has concurrent jurisdiction with the
district court in: . . . (2) an action by or against a trustee; [or] (3) an action
involving an inter vivos trust . . . .” Id. § 32.007 (West Supp. 2014).
Exclusive Jurisdiction
Thus, the administration of an inter vivos trust like this one generally is a
matter within the jurisdiction of a probate court. Id. The issue before us is
whether the family court obtained exclusive jurisdiction over the management of
the M.H.W. 2000 Trust pursuant to the provisions of the 2012 divorce decree. We
conclude that it did not. Although the Family Code confers continuing, exclusive
jurisdiction upon a family court “over the matters provided for [in the statute] in
connection with a child on the rendition of a final order,” that jurisdiction is
exclusive only insofar as the Family Code is implicated. See TEX. FAM. CODE
ANN. § 155.001(a).
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The fact that Weiner and Warren agreed to the terms of the divorce decree,
which provided that the trusts would “continue as written,” does not deprive the
probate court of subject-matter jurisdiction. Parties may neither confer nor waive
jurisdiction by agreement. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 445–46 (Tex. 1993). Nor does the divorce decree purport to govern
administration of the trust. Instead, the decree expressly acknowledges that the
trust agreement governs, and requires the parent to continue to seek appointment as
co-trustees.
Weiner suggests that the administration of the trust is a child-support issue
and thus a dispute about it falls within the exclusive jurisdiction of the family
court. We disagree. Although the trust was created for M.H.W.’s benefit, nothing
in either the trust agreement or in the divorce decree provides that the trust is to be
used as child support. Neither the trust nor the decree requires any trust
distributions before M.H.W. reaches the age of 30.
Both parties rely on Barrientos v. Nava, 94 S.W.3d 270 (Tex. App.—
Houston [14th Dist.] 2002, no pet.), in which our sister court considered whether
the family court had continuing, exclusive jurisdiction over a suit to recover the
benefits of life insurance policies. 94 S.W.3d at 275–76. The Barrientos court held
that the family court had jurisdiction over the mother’s suit against the children’s
grandmother because the life insurance policies replaced child support that was lost
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when the father violated the divorce decree. Id. at 278. The court further held that
that judicial economy and practical considerations made it appropriate for the
family court to hear additional claims indirectly related to the support obligation.
Id. at 279. “As a court of general jurisdiction in which family matters merely take
precedence, the family district court was clearly permitted to hear and decide the
trust issues in [the] case.” Id. Nothing in Barrientos suggests that the family court
had exclusive jurisdiction over claims involving funds not designated as child
support; rather, the court held that the family court had general jurisdiction to hear
such claims.
The trust instrument, not the divorce decree, governs the administration of
the trust’s assets; a modification to the terms of the trust is not a child-support
matter exclusive to the family court’s jurisdiction. Because the administration of
the M.H.W. 2000 Trust is not a child-support matter as the Family Code defines it,
the probate court had jurisdiction to hear the dispute. Compare TEX. FAM. CODE
ANN. §§ 155.001(a) (scope of family court’s exclusive jurisdiction), 155.003(a)
(exercise of that jurisdiction) with TEX. EST. CODE ANN. §§ 32.006 (scope of
probate court’s jurisdiction), 32.007 (scope of concurrent jurisdiction of probate
and district courts).
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Dominant Jurisdiction
The trial court’s order did not abate this suit in favor of the family court.
Instead, the court granted the plea to the jurisdiction and dismissed Warren’s
claims. “The general common law rule in Texas is that the court in which suit is
first filed acquires dominant jurisdiction to the exclusion of other coordinate
courts.” Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). “Any subsequent suit
involving the same parties and the same controversy must be dismissed if a party
to that suit calls the second court’s attention to the pendency of the prior suit by a
plea in abatement.” Id. To obtain a dismissal of the probate suit on the basis that
the family court had acquired dominant jurisdiction, Weiner must show that (1) the
family court proceeding commenced first, (2) that suit is still pending, (3) the same
parties are involved, and (4) the controversies are the same. In re Sims, 88 S.W.3d
297, 303 (Tex. App.—San Antonio, orig. proceeding); see also Wyatt v. Shaw
Plumbing Co., 760 S.W.2d 245, 247–48 (Tex. 1988). “It is not required that the
exact issues and all the parties be included in the first action before the second is
filed, provided that the claim in the first suit may be amended to bring in all
necessary and proper parties and issues.” Wyatt, 760 S.W.2d at 247. The test is
whether there is an inherent interrelation of the subject matter in the two suits. Id.;
see also Dallas Fire Ins. Co. v. Davis, 893 S.W.2d 288, 292 (Tex. App.—Fort
Worth 1995, orig. proceeding).
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In urging that we abate the probate proceeding, Weiner argues that the
probate claims relate back to the original divorce proceeding under Section 16.068
of the Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.068 (West 2012). But a pleading does not relate back if “the amendment or
supplement is wholly based on a new, distinct, or different transaction or
occurrence.” Id. The parties’ trust-management claims do not relate back to the
original family court petition under Section 16.068 because they arose post-
divorce. Nor did M.H.W. appear as a party, as required by law in a suit concerning
a trust. See TEX. PROP. CODE ANN. § 115.011 (West 2012) (beneficiary of trust is
necessary party to proceeding concerning trust, including proceeding to appoint or
remove trustee).
In contrast to this probate court proceeding, the family court suit was a
divorce proceeding between Weiner and Warren in their individual capacities and a
suit affecting the parent-child relationship under the Family Code. The children
and the trusts were not parties to the divorce, nor did Weiner and Warren appear in
their capacities as co-trustees or as next friends of M.H.W. While the family court
appointed an amicus attorney to protect the interests of M.H.W. and another of the
children, the amicus did not represent M.H.W. Rather, the role of amicus attorney
“is to provide legal services necessary to assist the court in protecting a child’s best
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interests rather than to provide legal services to the child.” TEX. FAM. CODE ANN.
§ 107.001(1) (West 2012).
Nor does Weiner’s amended petition in family court relate back to his
original petition. The original petition made no mention of the trust-administration
dispute, and it was only after Warren filed suit in family court over that dispute
that Weiner asserted claims related to administration of the trusts. The two suits
were not so inherently interrelated as to confer dominant jurisdiction over the trust
claims on the family court. See Wyatt, 760 S.W.2d at 247; Dallas Fire Ins., 893
S.W.2d at 292.
Given these differences between the family court and probate court
proceedings, Weiner did not meet his burden to demonstrate facts sufficient to
support his plea in abatement and dismissal. Accordingly, the probate court erred
in dismissing Warren’s suit on the basis of a pending proceeding in which another
court already had acquired dominant jurisdiction.*
Conclusion
Because the Probate Code, and not the Family Code, governs administration
of the M.H.W. 2000 Trust, we hold that a suit regarding the management and
proposed dissolution of the trust does not fall within the exclusive jurisdiction of
*
We express no opinion on whether the probate court could have stayed, rather than
dismissed, the probate court proceeding pending resolution of the family court suit
regarding whether Weiner or Warren have violated the divorce decree in their
administration of the trust.
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the family court. We reverse the order of dismissal and remand the case to the
probate court for further proceedings.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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