Coons-Andersen v. Andersen

• Decision Date: 13 March 2003
• Docket Number: No. 05-01-01801-CV.,05-01-01801-CV.
• Citation: 104 S.W.3d 630
• Parties: Lisa COONS-ANDERSEN, Appellant, v. Juley ANDERSEN, Appellee.
• Court: Texas Court of Appeals

104 S.W.3d 630

Lisa COONS-ANDERSEN, Appellant, v. Juley ANDERSEN, Appellee.

No. 05-01-01801-CV.

Court of Appeals of Texas, Dallas.

March 13, 2003.

COPYRIGHT MATERIAL OMITTED

Charles W. McGarry, Dallas, for appellant.

Tom P. Briggs, Berry, Briggs & Berkley, Dallas, for appellee.

Before Justices MORRIS, MOSELEY, and FRANCIS.

OPINION

Opinion by Justice MORRIS.

The central issue we decide in this appeal is whether appellant Lisa Coons-Andersen has standing under Texas law to seek visitation with and custody of a child born to appellee Juley Andersen, appellant's long-time romantic partner. We conclude she does not have standing and, therefore, conclude the trial court properly dismissed her suit. We also conclude the trial court correctly granted appellee summary judgment on appellant's breach of contract claims against appellee. Accordingly, we affirm the trial court's judgment.

I.

Appellant and appellee began their relationship in 1988 in Florida. While they lived together, appellee conceived a child by artificial insemination. The child was born in March 1997. In October 1998, the parties' relationship ended, and appellee and the child moved to a different residence in Florida. After the parties separated, appellant continued to pay half of the child's day care expenses for three months, and appellee allowed appellant to have periodic visitation with the child. In late 1999, appellee and the child moved to Texas, where they now reside. Appellant remained in Florida. Soon after her move to Texas, appellee denied appellant any further visitation with the child.

In June 2000, appellant filed suit against appellee. The lawsuit combined a claim for breach of contract with a suit affecting the parent-child relationship as provided for under the Texas Family Code. In her original petition, appellant alleged she had standing to bring suit under section 102.003(a)(9) of the Texas Family Code because, as required by the statute, she had actual care, control, and possession of the child for a period of six months within ninety days of filing suit. She later amended her petition to allege that, but for the deceptive acts of appellee, she would have filed suit within ninety days following the period of her actual care, control, and possession of the child. Additionally, appellant sought reimbursement for expenses she incurred in connection with the birth and care of the child while she and appellee lived together in Florida, a claim based on an alleged oral contract that appellant would support appellee and the child in return for being allowed to coparent the child.

In response to the petition, appellee filed a plea in abatement and motion to dismiss challenging appellant's standing to maintain a suit affecting the parent-child relationship because, in fact, she had not had actual care, control, and possession of the child since October 1998. The trial court granted appellee's plea and ruled that appellant did not satisfy the standing requirements of section 102.003(a)(9).¹

Appellee later moved for summary judgment on appellant's breach of contract claim, arguing the alleged oral agreement was unenforceable because it violated the statute of frauds and that there was no evidence of the agreement on which appellant relied to make her claim. The trial court granted summary judgment to appellee.

Appellant raises four issues on appeal. First, she contends family code section 102.003(a)(9), as applied to her, violates the open courts provision of the Texas Constitution. Second, she argues appellee's fraudulent conduct prevented her from complying with section 102.003(a)(9) and appellee should be estopped from asserting lack of standing. Third, she claims the application of section 102.003(a)(9) violates her rights to association and to contract freely with other parties under the Texas Constitution. Fourth, she complains the trial court erred in granting summary judgment against her on the breach of contract claim.

II.

We first address the standing issue. Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). The standard of review applicable to subject matter jurisdiction also applies to standing. Id. at 446. Under that standard, the pleader is required to allege facts affirmatively demonstrating the trial court's jurisdiction to hear the case. Id. On review, appellate courts "construe the pleadings in favor of the plaintiff and look to the pleader's intent." Id. A party's standing to pursue a cause of action is a question of law. See N. Alamo Water Supply Corp. v. Tex. Dep't of Health, 839 S.W.2d 455, 457 (Tex.App.-Austin 1992, writ denied). Consequently, we review the trial court's actions de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

Texas Family Code section 102.003(a)(9) grants standing to file a suit affecting the parent-child relationship to "a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition." TEX. FAM.CODE ANN. § 102.003(a)(9) (Vernon 2002). Occasional visitation with or possession of a child, however, is not "actual care, control, and possession" under the statute and does not satisfy section 102.003(a)(9)'s strict time requirement. See Tex. Dep't of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001). At the time of filing suit, appellant did not meet the statute's requirement because she had not had actual care, control, and possession of the child since October 1998. Therefore, she did not have standing under section 102.003(a)(9). See Jones v. Fowler, 969 S.W.2d 429, 433 (Tex.1998) (lesbian mother's former romantic partner did not have standing because she did not have actual care, control, and possession of child for requisite time before filing suit).

Recognizing the statutory obstacle to her standing, appellant argues in her first issue that section 102.003(a)(9), as applied to her, violates the open courts provision of the Texas Constitution. The open courts provision states all courts shall be open and every person shall have a remedy for his injuries by due course of law. See TEX. CONST. art. I, § 13. It affords at least three distinct protections: (1) courts must actually be open and operating; (2) access to courts may not be impeded by unreasonable financial barriers; and (3) the legislature may not abrogate the right to assert a well-established common law cause of action. See Tex. Ass'n of Bus., 852 S.W.2d at 448. Appellant invokes the third protection, claiming section 102.003(a)(9) abrogates a common law cause of action.

To establish an open courts violation, a litigant must show that, first, the statute restricts a well-recognized common law cause of action and, second, the restriction is unreasonable or arbitrary when balanced against the statute's purpose. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 508 (Tex.1997). We must construe the statute in a manner that renders it constitutional, if possible. See Trinity River Auth. v. URS Consultants, Inc. Tex., 869 S.W.2d 367, 370 (Tex.App.-Dallas 1993), aff'd, 889 S.W.2d 259 (Tex.1994).

Our first inquiry, then, is whether section 102.003(a)(9) restricts a well-recognized common law cause of action. Appellant argues she stood in loco parentis to the child and, by virtue of that relationship, would have standing under common law to file a lawsuit seeking custody of the child. She contends the statute restricts her common law right and is therefore unconstitutional.

Texas courts have traditionally recognized the rights of persons standing in loco parentis to a child. It is well-established that "in loco parentis" means in the place of a parent and refers to a relationship a person assumes toward a child not his or her own. See Trotter v. Pollan, 311 S.W.2d 723, 729 (Tex.Civ.App.-Dallas 1958, writ ref'd n.r.e.); McDonald v. Tex. Employers' Ins. Ass'n, 267 S.W. 1074, 1076 (Tex.Civ.App.-Dallas 1924, writ ref'd). A person standing in loco parentis to a child voluntarily assumes the obligations of a parent. See Trotter, 311 S.W.2d at 729; McDonald, 267 S.W. at 1076. Under common law, a person in loco parentis to a child had the same rights, duties, and liabilities as the child's parents. McDonald, 267 S.W. at 1076. These rights included, in appropriate circumstances, having standing as a party in a lawsuit involving custody of the child. Trotter, 311 S.W.2d at 729 (persons in loco parentis have "existing justiciable interest" in controversy involving custody of child). Being in loco parentis is, however, by its very nature, a temporary status.² See Trotter, 311 S.W.2d at 729; McDonald, 267 S.W. at 1076.

Although we agree that at common law a person standing in loco parentis to a child could have, under appropriate circumstances, standing in a custody suit, in this case appellant simply has not established that she was in loco parentis to the child at the relevant time. Appellant alleges in her brief that she was in loco parentis but fails to explain how and when she achieved this status. Nonetheless, reading her brief liberally, we perceive three possible arguments: first, appellant could claim to be in loco parentis by virtue of the rights conferred on her in the agreement she made with appellee to share parenting duties; second, she could claim she was in loco parentis due to the visitation appellee allowed her to have with the child; or third, she could claim to have been in loco parentis while she was living with the child and appellee. At oral argument, her counsel suggested she was in loco parentis by virtue of her agreement with appellee.

We do not agree a person can be in loco parentis to a child, without actually having possession of the child, by virtue of an alleged...