Opinions, March 24, 2015

The Fourteenth Court of Appeals released two family law opinions yesterday: In re C.D.B., No. 14-13-00718-CV (Tex.App.–Houston [14th Dist.] Mar. 24, 2015) and In re M.L.G.J., T.M.J., T.L.W., Jr., M.A.J., T.P.R.J., B.W.D. III, M.R.J., and L.C.J., No. 14-14-00800-CV (Tex.App.–Houston [14th Dist.] Mar. 24, 2015).

In In re C.D.B., the Court of Appeals went to remarkable lengths to construe the pleadings as granting the trial court jurisdiction. In the underlying matter, the mother was appointed managing conservator of the child and the father was appointed possessory conservator and ordered to pay child support. The child graduated from high school in June 2012 and turned eighteen in July 2012. In January 2013, the father filed a “Petition to Modify the Parent Child Relationship.” The father alleged that the child lived with him from some point in his junior year until graduation, a period in which the mother voluntarily surrendered custody but the father continued to pay child support. The court construed the father’s petition as requesting three types of relief: 1) direct reimbursement for the support he paid while the child was living with him before graduation; 2) reimbursement of those payments as a counterclaim to the mother’s claim for arrearages or an offset of support provided by father during the last two years of high school against his arrearages; and 3) retroactive support from the mother.

The mother moved to dismiss the father’s petition  on the grounds the child had turned 18 before the petition was filed, had no disability and the trial court lacked jurisdiction over the matter. The trial court dismissed the petition on the ground that the child was 18 and the court lacked jurisdiction to “modify” its underlying order.

The court of appeals construed the mother’s motion to dismiss as a plea to the jurisdiction challenging the father’s pleadings. This affects the standard of review. When a plea to the jurisdiction challenges the plaintiff’s pleadings, the trial court must determine if the plaintiff has alleged facts that affirmatively demonstrate the court’s jurisdiction. Whether or not the plaintiff has done so is a question of law reviewed de novo. The plaintiff’s pleadings will be construed liberally in the plaintiff’s favor and unless the pleadings affirmatively negate the existence of jurisdiction, the plea to the jurisdictions should not be granted without allowing the plaintiff an opportunity to amend. Throughout the opinion, the court treats it as the mother’s burden to negate existence of jurisdiction. Once the court of appeals recites the standard of review, you can’t but help think the disposition is in view.

The father apparently admitted that he did not request a modification of the support order (despite the pleading’s title) and the court of appeals agreed to look behind the pleadings and address the jurisdictional issue for each of the three different forms of relief requested. As a request for direct reimbursement, the father’s pleading failed and the trial court lacked jurisdiction to retroactively modify the support order to eliminate the father’s child support obligations while the child stayed with him. In other words, the father’s own pleading negated jurisdiction.

Next is the father’s request for reimbursement or offset relative to arrearages. The father argued that because the trial court retained jurisdiction to enforce its support order until all arrearages were paid, despite the child being emancipated, it also retained jurisdiction to entertain the father’s request for reimbursement or offset against the arrearage claim. On appeal, the mother suggested the father could not obtain this relief because there was no motion to enforce and the relief requested by the father was defensive and not based on an independent right to seek reimbursement. The court of appeals noted there was no motion to enforce by either the mother or AG in the record. Then, the court of appeals noted, “nothing in the record negates that such a motion was filed.” I don’t understand this. The court of appeals just said that the mother stated on appeal there was no motion to enforce. What proof could she offer to show the non-existence of a motion to enforce? A printout of the trial court’s docket sheet? But, “absent special exceptions” the Court of Appeals considered the father’s reference to a “claim” for arrearages “as sufficient to mean there was a motion to enforce.”

Then, to make matters more confusing, the father apparently acknowledged on appeal that a motion to enforce was not filed because the AG continued to garnish his wages to extinguish the arrearages, which negated the necessity for a motion to enforce. The father also suggested the garnishment of wages was functionally equivalent to a motion to enforce and thus he was permitted to seek reimbursement or offset or that he could request confirmation of his arrearages so that he could then seek reimbursement or offset. Without reaching this issue, the court of appeals concluded the dispute as to whether or not there existed a claim against which the father could obtain reimbursement or offset concerned the merits of his request. The mother’s pleading was a “narrowly based” on the trial court’s lack of jurisdiction and did not address the father’s request for reimbursement or offset. Therefore, the court of appeals held, the mother’s plea failed to negate the trial court’s jurisdiction and the trial court erred by dismissing the father’s petition.

As for the trial court’s dismissal of the father’s request for retroactive support, the father evidently did not challenge the dismissal and the Court of Appeals upheld that portion of the trial court’s ruling.

The Court of Appeals sustained the father’s issues “to the extent the challenges the trial court’s dismissal of his request for reimbursement or offset relative to a claim for arrearages” and reversed that portion of the dismissal and remanded for further proceedings. It’s unclear what the trial court is going to do with the case now, as there is no motion to enforce on file. Perhaps have an evidentiary hearing?

The dissent, authored by Chief Justice Kem Thompson Frost, did not construe the father’s pleadings as liberally, finding that it could be construed as either a request for modification of a prior child support order or as an affirmative claim for reimbursement irrespective of whether he was in arrears–neither of which the trial court had jurisdiction over.

The dissent points out that not only was no motion to enforce filed, there are several items in the record which show that no such motion was filed, including an original petition filed by the father as petitioner (indicating he is not asserting a defense of reimbursement or offset in response to a motion to enforce) and in which he requested service on the mother (which would not be necessary if he was responding). The mother filed only an answer and did not assert any claim against the father, much less past due child support.

Further, the mother filed a document in the trial court which indicated that by the time she filed her answer, the father’s arrearages had been extinguished. In a series of footnotes, the dissent contests much of the majority’s construction of the father’s petition, especially on the issue of whether or not the father alleged a claim for child support arrearages. The dissent argues that the father’s suggestion that garnishing of wages is the functional equivalent of a motion to enforce is insufficient to invoke the trial court’s jurisdiction. Finally, the dissent notes that the majority incorrectly stated the law when it stated the trial court can only dismiss for lack of jurisdiction based upon a ground contained in a plea to the jurisdiction and that the court of appeal’s review is limited to those grounds. The trial court, the dissent stated, is not limited to the grounds stated in the plea to the jurisdiction.

In re M.L.G.J., T.M.J., T.L.W., Jr., M.A.J., T.P.R.J., B.W.D. III, M.R.J., and L.C.J. is a termination case. Like most termination cases, it is heartbreaking. Interestingly, Justice Tracy Christopher drafted a brief concurrence which lamented the lack of evidence in the trial court, in the form of both useful testimony and documents, but she ultimately found the evidence was sufficient to affirm the terminations.

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