In re J.G.

• Decision Date: 23 February 2023
• Docket Number: 02-22-00238-CV
• Parties: In the Interest of J.G., a Child
• Court: Texas Court of Appeals

In the Interest of J.G., a Child

No. 02-22-00238-CV

Court of Appeals of Texas, Second District, Fort Worth

February 23, 2023

On Appeal from the 16th District Court Denton County, Texas Trial Court No. 21-6778-16

Before Womack, Wallach, and Walker, JJ.

MEMORANDUM OPINION

Brian Walker Brian Walker Justice

Appellant L.C. (Mother) brings this restricted appeal against Appellee J.G. (Father) regarding an order awarding Father sole managing conservatorship of their child J.G (Janet).^[1] Mother contends that the evidence was legally insufficient to (1) support the entry of a post-answer default judgment, (2) show that she participated in the hearing that resulted in the final order, and (3) show that Father gave her notice of the hearing on his motion for default judgment. We overrule all three issues.

Although not designated as an issue in Mother's brief, she also complains about the award of attorney's fees through trial. Father concedes that he failed to prove up the award of both trial and appellate attorney's fees and therefore, both should be vacated. Based on Mother's complaint and Father's concession regarding the award of attorney's fees, we modify the trial court's order to vacate the award of both trial and appellate attorney's fees, and we affirm the order as modified.

I. BACKGROUND

Father filed in Texas on August 10, 2021, an "Original Petition in Suit Affecting the Parent-Child Relationship," and on August 24, 2021, he filed a supplemental petition. The child who was the subject of the suit was nine-year old Janet. Father acknowledged that Mother resided in South Carolina. According to Father's supporting affidavit, he and Mother were Janet's biological parents, but he did not assert that he and Mother had ever been married.

Regarding jurisdiction, Father alleged that "[n]o court ha[d] continuing jurisdiction of this suit or of the child the subject of this suit" and that "[t]his Court ha[d] jurisdiction of this matter under the Texas Family Code [S]ection 152.204." By relying on Section 152.204, Father was implicitly acknowledging that Texas was not Janet's home state^[2] and expressly acknowledging that any jurisdiction that the trial court asserted would be based on a temporary emergency. See Tex. Fam. Code Ann. § 152.204(a), (b).^[3] According to Father's affidavit, Janet had arrived in Texas about six weeks earlier, on July 1, 2021.

Within his petition, Father requested a temporary restraining order, temporary orders, temporary injunctions, and a permanent injunction. Thus, Father anticipated that the trial court's temporary emergency jurisdiction would eventually evolve into exclusive continuing jurisdiction. See id. § 152.202(b). Section 152.204 provides for temporary emergency jurisdiction becoming exclusive continuing jurisdiction under certain circumstances. See id. § 152.204(b).

Father's original petition was served on Mother on August 12, 2021, and the return of service was filed on August 16, 2021. Mother does not dispute that she was served on August 12, 2021. The citation warned Mother that a default judgment might be taken against her if she did not file an answer.^[4] Mother was also served with a notice stating that the trial court had granted a temporary restraining order when Father presented his petition and that the trial court had set a hearing for 1:30 p.m. on August 23, 2021, at which Mother could "show cause why [the] injunction/restraining order should not be granted upon such Petition/Application effective until Final Order/Decree in such suit."^[5]

Mother was also served with a notice of a hearing set for 1:30 p.m. on August 23, 2021, on Father's petition.

Twenty days after Father filed his original petition, on August 30, 2021, the trial court signed temporary orders. The trial court set out the case's procedural posture and substantively addressed Father's and Mother's conservatorship and rights of possession.

Procedurally, the order recites that on August 30, 2021, it heard Father's "motion for temporary orders," which contextually refers to Father's request for temporary orders in his petition, and within the order, the trial court twice indicates that it heard evidence. The order states that Mother, "although duly and properly notified, did not appear and wholly made default." It further relates that "the Court has jurisdiction of this case and of all the parties per Texas Family Code [S]ection 152.204 and that there are no previous child custody determinations."

Substantively, the trial court (1) adjudicated Father as Janet's father, (2) appointed Father as Janet's temporary sole managing conservator, and (3) appointed Mother as Janet's temporary possessory conservator. But the order further provided that Mother was denied access to Janet until Mother could show that she was sober and healthy:

The Court finds that credible evidence has been presented that there is a history or pattern of child neglect and substance abuse by [Mother] and a history or pattern of family violence by [Mother]. IT IS THEREFORE ORDERED that [Mother's] possession of and access to the child is DENIED until and unless [Mother] demonstrates she is sober and healthy, including but not limited to submitting to drug tests and the evaluations as ordered herein. IT IS ORDERED that [Father] shall have possession of and access to the child at all times.

The order concluded, "These Temporary Orders shall continue in force until further order of this Court."

About five months later, on January 24, 2022, Father filed a motion to enter a default judgment. Father asserted that Mother had been served with his original petition on August 12, 2021, and that the return of service had been filed on August 16, 2021. Father also related that the trial court had asserted temporary emergency jurisdiction under Section 152.204 of the Texas Family Code and signed temporary orders on August 30, 2021. Father then explained that Mother had not filed any answer or pleadings or otherwise made an actual appearance but had made an ex parte communication with the court by email on or about September 30, 2021, and that the court administrator had forwarded the communication to Father's attorney. Because Janet had been in Texas at least six months, Father maintained that Texas was now her home state, and because Mother had not filed any suit in South Carolina, Father asserted that the trial court could make its temporary orders a final judgment.^[6] Specifically, Father stated,

6.... As of the date of this Motion, a child custody proceeding has not been commenced in a court of a state having jurisdiction under [S]ections 152.201 through 152.203[,] and as of the date of this Motion, the child the subject of this suit has resided in Texas for at least six months and Texas is now the home state of the child, the subject of this suit. Tex. Fam. Code § 154.204(b).

Father supported his motion for default judgment with an affidavit. In his affidavit, Father asserted that he had given "testimony at a temporary[-]orders hearing in this matter" on August 30, 2021. He also averred that there were "no court orders regarding custody, possession, or support," which, contextually, refers to out-of-state court orders.

Father's motion does not contain a certificate of service showing that he served Mother with a copy of his motion.

As noted earlier, Father acknowledged that Mother had emailed the court administrator on September 30, 2021. Father attached both Mother's email and the court administrator's email response to his motion.

Mother's email to the court administrator provided,

Hello [Court Administrator],

My name is [Mother,] and the case number is 21-6778-16. I live in South Carolina and have been unable to make the hearing and was hoping you could tell me what my next step should be. I work full time and have a home to maintain[,] so I would greatly appreciate knowing [what] my next move should be in Texas. [Janet] and I have lived in South Carolina for 5.6 years[,] and I was told by her father that she would be returned on July 30, yet I received papers and have been unable to afford an attorney[,] and [I had] no idea that [Father] was trying to take full custody of our child. He only showed up on her birthday[, . . . ] and [Janet] said she wanted to visit for the summer. She had done a great job in catching up on her reading[, so] instead of summer school, I allowed her to visit him and his family. I do not know what his family life is like[,] yet she and I do talk on the phone. Always supervised but I don[']t want to disrupt her school or her year with her dad. I believed he and I were amicabl[y] co-parenting. He had dis[]appeared for 2 years[,] but when you love your daughter, you let her know her father[']s family too[] [r]egardless[] of his not providing for [Janet's] well[-]being all those years. I realize that was more information than needed. I had a hard year last year with family members becoming very ill[,] and I knew she should have a fun summer.

If you would please help me with some way I could keep my child happy, safe[,] and well[-]adjusted. She needs both her parents[,] and I will not sign his full custody papers.

Sincerely,

[Mother]

[Telephone number]

Mother's email does not bear a file mark.

Also attached to Father's motion was the email that the court administrator sent to Mother and Father less than thirty minutes after Mother had sent her email; it provided,

The Court is in receipt of your correspondence regarding the abovereferenced cause. As a judge, Judge Shipman is charged by the Constitution and laws of the State of Texas to strictly follow the law. The law prohibits a judge from initiating, engaging in, and considering any form of communication which attempts to privately

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