in the Interest of J.R.D. and A.M.D., Children

Opinion filed February 27, 2014
In The
Eleventh Court of Appeals
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No. 11-12-00074-CV
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IN THE INTEREST OF J.R.D. AND A.M.D., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 40,124-C
MEMORANDUM OPINION
This appeal involves the geographic residence restriction that limited where
the minor children of Martin and Gloria Diaz could live following Martin and
Gloria’s divorce. Their divorce decree provided that the children were required to
reside in Taylor or contiguous counties unless the court ordered otherwise or
Martin and Gloria filed with the court a signed agreement that lifted the restriction.
The children had their primary residence with Gloria, who moved them from
Abilene to Colorado without filing a written agreement that Martin had consented
to the move or securing a court order that she could move the children. In
response, Martin brought a post-divorce motion for enforcement of the geographic
restriction, which sought to hold Gloria in contempt and order the return of the
children to Abilene. The trial court denied Martin’s motion after a “de novo”
hearing. Martin appeals. We dismiss.
I. The Evidence at De Novo Hearing
The record showed that Gloria and Martin were divorced in 2008. In their
decree of divorce, the trial court ordered that no change in the children’s residence
was allowed without court approval of a written agreement, signed by Gloria and
Martin, that lifted the restriction. In the alternative, the court also ordered that the
geographic restriction could be lifted if, at the time of Gloria’s request to the court
to lift the restriction, Martin no longer resided in Taylor or its contiguous counties.
On July 7, 2010, Gloria moved to lift the geographic restriction, but the trial
court denied her request in February 2011. Later during that summer, Gloria and
Martin, who was a teacher in Abilene, discussed whether he should apply for a
teaching position in the Midland-Odessa area. Martin testified that Gloria
indicated she and the children might move there.
Martin accepted a ten-month teaching job in Odessa for the 2011–2012
school year. He continued to maintain a home in Abilene but also rented an
efficiency apartment in Odessa; during the time that he worked as a teacher in
Odessa, he stayed in both places. On September 1, 2011, after Martin had
accepted the Odessa teaching position, Gloria, without his permission, moved the
children to Colorado. The record does not reflect that, following her 2010 request,
but prior to this move to Colorado, Gloria had again moved the court to lift the
geographic restriction or filed an agreement that Martin consented to the move.
Martin moved for criminal and civil contempt against Gloria and requested
that the trial court (1) jail and fine her for contempt because she took the children
to Colorado without approval by him or the court, (2) jail and fine her for contempt
because she prevented his visits with his children in September and October, and
(3) order her to return the children to Abilene.
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The trial court referred the matter to Associate Judge Charles E. “Ed”
Myers, who heard the motion in November and initially held Gloria in contempt
and ordered the children returned to Abilene. But Judge Myers later rescinded that
order and recommended denial of Martin’s motion; Judge Myers explained that
Gloria had not violated the restriction because Martin was no longer a Taylor
County resident. Martin appealed Judge Myers’s recommendation and requested a
de novo hearing in the district court.
At the de novo hearing on November 29, 2011, Martin testified he had filed
the motion because Gloria had moved the children to Colorado without court
approval and had not allowed him visitation in September and October. Martin
also testified that he resided in Abilene when Gloria moved the children to
Colorado, although he briefly worked in Odessa and lived there part of the time.
Gloria admitted she took the children to Colorado and denied Martin his visits, but
she claimed she did so because he no longer resided in Abilene. Gloria testified
she had returned to Abilene after being served and had returned the children to
Abilene before the final hearing. Gloria also testified that she had an apartment in
Abilene, that the children were enrolled in Abilene schools, and that she and her
husband were employed in Abilene.
On December 7, 2011, the trial court denied Martin’s motion and ruled that
“the evidence does not support a finding of contempt.” In the trial court’s written
order, it stated, “IT IS ORDERED that the relief sought is denied.”
II. Issue Presented
Martin contends in his appeal that the evidence is “factually insufficient to
support the Court’s finding that Appellant, Martin Diaz, was not a resident of
Taylor County, Texas, when Appellee moved the children out of state.” Gloria
argues that the trial court did not err because Martin was no longer a resident of
Taylor County when she moved the children to Colorado.
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III. Discussion and Analysis
The trial did not make findings of fact in its order, which simply denied
Martin’s request to hold Gloria in contempt. On appeal, Martin cannot challenge
the trial court’s order that Gloria was not in contempt. Norman v. Norman, 692
S.W.2d 655 (Tex. 1985); In re B.A.C., 144 S.W.3d 8, 10–11 (Tex. App.—Waco
2004, no pet.).
In addition, Martin’s requested relief of the children’s return became “moot”
when Gloria returned the children to Abilene. An issue may become moot when a
party seeks a ruling on some matter that, when rendered, would not have any
practical legal effect on a then-existing controversy. In re H&R Block Fin.
Advisors, Inc., 262 S.W.3d 896, 900 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (citing City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex. App.—
Dallas 2007, no pet.), and Tex. Health Care Info. Council v. Seton Health Plan,
Inc., 94 S.W.3d 841, 846–47 (Tex. App.—Austin 2002, pet. denied)). In other
words, an issue is moot when the controversy ceases to exist, and courts have no
jurisdiction to issue advisory opinions under the Texas constitution. Ngo v. Ngo,
133 S.W.3d 688, 691 (Tex. App.—Corpus Christi 2003, no pet.) (citing Valley
Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000)).
Martin also failed to present a justiciable controversy on the issue of his
residency because the trial court never made a finding of fact that Martin was not a
resident of Taylor County, Texas, when Gloria moved the children to Colorado in
September 2011. This court is not allowed to issue advisory opinions that decide
abstract questions of law that do not resolve litigation and are not binding on the
parties. TEXAS CONST. art. II, § 1; Valley Baptist Med. Ctr., 33 S.W.3d at 822.
Finally, Martin complained in his motion for new trial that the trial court
failed to rule on the denied visitation issue. But he did not brief that issue to this
court, and points not briefed are waived. TEX. R. APP. P. 38.1(f); Pines Cal., Inc. v.
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Miller, 446 S.W.2d 91, 94 (Tex. Civ. App.—Eastland 1969, no writ) (citing St.
Paul Mercury Ins. Co. v. Sugarland Indus., Inc., 406 S.W.2d 778 (Tex. Civ.
App.—Eastland 1966, writ ref. n.r.e.)). Likewise, although mentioned in Martin’s
brief, the subsequent December 2011 move of the children by Gloria 1 was not an
issue before the trial court in the final hearing, and it is not before us.2
IV. This Court’s Ruling
We hold that we are without jurisdiction to review the trial court’s order of
“no contempt” and that Martin has failed to present a justiciable issue for our
review. Therefore, we dismiss the appeal.
MIKE WILLSON
JUSTICE
February 27, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
1
There is no reference in the record that the December 2011 move was agreed to by Martin or
approved by court order.
2
We note that a person entitled to possession of a child may pursue appropriate enforcement relief
through a habeas corpus proceeding. See TEX. FAM. CODE ANN. § 157.372 (West 2008).
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