Opinions, August 11, 2015

The First District Court of Appeals has released its memorandum opinion this morning in Blank v. Nuszen, No. 01-013-01061-CV (Tex.App.–Houston [1st Dist.] Aug. 11, 2015). The Court of Appeals dismissed the case on the grounds of mootness.

The procedural history is key to the ruling. The mother and father were divorced in 2009 and both were appointed JMCs of the five children. In 2010, the father filed a petition to modify, seeking SMC of the children. The mother filed a counterpetition, also seeking SMC. After a jury trial, on November 20, 2013, the trial court entered a final order appointing father as SMC, the mother as PC, and ordering mother to pay child support.

Mother then filed an appeal contending the trial erred in denying a motion for continuance and a so-called “motion to strike the jury venire,” excluding expert testimony, granting a modification without a showing of changed circumstances and denying her motion for new trial.

During the pendency of the appeal, the father filed an emergency petition to modify conservatorship, asserting material and substantial changes since the last order. On April 23, 2015, the trial court issued a default, again appointing father SMC but modifying mother’s access and child support obligations. Five days later, on April 28, the mother filed a motion for new trial, but did not file an appeal from the default order. Instead, on July 17, 2015, she filed a new petition to modify conservatorship.

On May 15, 2015, the Court of Appeals notified the mother of its intent to dismiss unless the mother could establish the appellate court’s jurisdiction.

The mother asserted that the filing of her notice of appeal divested the trial court of its jurisdiction to modify its November 20, 2013 order. The Court of Appeals disagreed, citing the family law trial court’s continuing, exclusive jurisdiction over prior orders affecting the parent-child relationship. The pendency of the appeal did not deprive the trial court of jurisdiction to modify its order.

The mother also asserted that there was a continuing injury that the Court of Appeals could address. The Court of Appeals disagreed, stating that even if she prevailed on her appeal of the November 20, 2013 order, she would still be subject to the April 23, 2015 default order.

Finally, the mother argued that her appeal met one of the exceptions to the mootness doctrine, specifically the “capable of repetition, yet evading review” exception. That exception applies to rare circumstances where the challenged act is so short the appellant can’t obtain review before the issue becomes moot and there is a reasonable expectation that the same action will occur again again if the issue is not considered by the court. Because the mother had not demonstrated that she could not obtain review of the new order, the Court of Appeals denied the “capable of repetition” argument.

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