In re Norris

• Decision Date: 07 June 2012
• Docket Number: No. 03–12–00239–CV.,03–12–00239–CV.
• Citation: 371 S.W.3d 546
• Parties: In re Charles NORRIS.
• Court: Texas Court of Appeals

371 S.W.3d 546

In re Charles NORRIS.

No. 03–12–00239–CV.

Court of Appeals of Texas,

Austin.

June 7, 2012.

Leigh De la Reza, Law Office of Leigh De la Reza, P.C., Austin, TX, for relator.

Sarah Elizabeth Pilkington, Pickington Law Firm, Austin, TX, for real party in interest.

Before Chief Justice JONES, Justices PEMBERTON and ROSE.

OPINION

BOB PEMBERTON, Justice.

This is an original proceeding brought incident to a pending appeal that presents issues concerning the scope of a family code provision that grants to trial courts the authority to issue temporary orders pending the appeal of a case involving conservatorship of a child. SeeTex. Fam.Code Ann. § 109.001 (West 2008). Relator Charles Norris seeks a writ of mandamus to set aside a district court order that he pay real party in interest Melissa Norris's attorney's fees in the pending appeal. Based on the reasons set forth below, we will conditionally grant the writ.

BACKGROUND

Charles Norris and Melissa Norris divorced in 2006.¹ There was one minor child of the marriage, and the divorce decree appointed Charles and Melissa joint managing conservators, but no party was ordered to pay child support.² Melissa filed the underlying suit seeking an order from the district court requiring Charles to pay child support. After a full trial on the merits, the district court signed a final order modifying the parent-child relationship on December 14, 2012, ordering Charles to pay child support in the amount of $885 per month. Charles filed a motion for new trial on January 13, 2012, and on February 17, 2012, Charles perfected his appeal to this Court by filing a notice of appeal with the district clerk.

On March 6, 2012, Melissa filed a motion for temporary orders pending appeal, seeking payment of her appellate attorney's fees on the grounds that they were necessary to preserve and protect the safety and welfare of the child. On March 20, 2012, thirty-one days after Charles perfected his appeal to this Court, the district court conducted a hearing on Melissa's motion for temporary orders and orally ruled that he would grant the motion. On March 29, the district court signed a written order granting Melissa's motion and ordering Charles to pay Melissa $8,100 in appellate attorney's fees by May 4, 2012. Charles then filed this original proceeding and, pursuant to his request for temporary relief, we issued an order on May 2, 2012, staying the district court's March 29 order until further notice.

STANDARD OF REVIEW

We may issue a writ of mandamus when a trial court clearly abuses its discretion and there is no adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.2004). A trial court “abuses its discretion” if it issues an order that exceeds its jurisdictional authority. See In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000); In re Dickason, 987 S.W.2d 570, 571 (Tex.1998). In fact, an order that exceeds a court's jurisdictional authority is void, and a relator who seeks mandamus relief from a void order need not show that he lacks an adequate appellate remedy. See In re Southwestern Bell, 35 S.W.3d at 605;In re Dickason, 987 S.W.2d at 571 (citing Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990) (explaining that judgment is void where rendering court had no jurisdiction or capacity to act as a court)).

To the extent that the parties' issues turn on the construction of a statute, we review these questions de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Our primary objective in statutory construction is to give effect to the Legislature's intent. See id. We seek that intent “first and foremost” in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). “Where text is clear, text is determinative of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh'g) (citing Shumake, 199 S.W.3d at 284;Alex Sheshunoff Mgmt. Servs. v. Johnson, 209 S.W.3d 644, 651–52 (Tex.2006)). We consider the words in context, not in isolation. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). We rely on the plain meaning of the text, unless a different meaning is supplied by legislative definition or is apparent from context, or unless such a construction leads to absurd results. See Entergy Gulf States, Inc., 282 S.W.3d at 437;City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.2008); see alsoTex. Gov't Code Ann. § 311.011 (West 2005) (“Words and phrases shall be read in context and construed according to the rules of grammar and common usage,” but “[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”). We also presume that the Legislature was aware of the background law and acted with reference to it. See Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301 (Tex.1990). We further presume that the Legislature selected statutory words, phrases, and expressions deliberately and purposefully. See Texas Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.2010); Shook v. Walden, 304 S.W.3d 910, 917 (Tex.App.-Austin 2010, no pet.). Our analysis of the statutory text may also be informed by the presumptions that “the entire statute is intended to be effective” and that “a just and reasonable result is intended,” Tex. Gov't Code Ann. § 311.021(2), (3) (West 2005), and consideration of such matters as “the object sought to be attained,” “circumstances under which the statute was enacted,” legislative history, “common law or former statutory provisions, including laws on the same or similar subjects,” “consequences of a particular construction,” and the enactment's “title,” id. § 311.023(1)-(5), (7) (West 2005). However, only when the statutory text is ambiguous “do we ‘resort to rules of construction or extrinsic aids.’ ” Entergy Gulf States, Inc., 282 S.W.3d at 437 (quoting In re Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007)).

ANALYSIS

Charles contends that section 109.001 of the family code provides the exclusive authority for the district court to issue temporary orders pending an appeal of a suit affecting the parent-child relationship, and that the district court's March 29 order in this case is void because the district court had already lost its jurisdiction to render such an order thirty days after Charles perfected his appeal on February 17. Melissa agrees that section 109.001 controls here, but insists that the district court's March 29 order was timely under section 109.001, and thus not void, for three reasons: (1) Charles's notice of appeal was “premature” because he filed it before his motion for new trial was overruled; (2) Melissa was prejudiced when Charles did not serve a copy of the notice of appeal on Melissa's attorney until five days after he filed it with the district court, which, she reasons, entitles her to an additional five days under section 109.001 to obtain temporary orders; and (3) by including the additional fives days to which Melissa claims she is entitled, the district court's oral order granting the requested temporary orders pending appeal occurred within the thirty-day time limit.³

Chapter 109 of the family code governs the appeal of a final judgment in a suit affecting the parent-child relationship (SAPCR). SeeTex. Fam.Code Ann. §§ 109.001–.003 (West 2008 & West Supp.2011); see generally id. §§ 101.001–266.001 (West 2008 & West Supp.2011) (Title F of family code, titled “The Parent–Child Relationship and the Suit Affecting the Parent–Child Relationship”). An appeal under this chapter generally follows the same path as other civil appeals—with the notable exception that appeals of termination cases are accelerated. See id. § 109.002(a). Thus, for example, once the appeal is perfected, the trial court loses its jurisdiction over the entire controversy, but it still retains plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed or, if a motion for new trial is filed, within thirty days of that motion being overruled. See Miles v. Ford Motor Co., 914 S.W.2d 135, 138 (Tex.1995) (citing Ammex Warehouse Co. v. Archer, 381 S.W.2d 478 (holding that when appeal is perfected, appellate court “acquires plenary exclusive jurisdiction over the entire controversy” subject to trial court's right to grant a motion for new trial)); see alsoTex.R. Civ. P. 329b (providing rules regarding post-trial motions for new trial and motions to modify, correct, or reform judgments).

Family code section 109.001 provides an exception to this general rule by creating a narrow, jurisdictional window of time during which the trial court in an appealed SAPCR case may make temporary orders regarding matters that were not included in its final judgment:

Not later than the 30th day after the date an appeal is perfected, on the motion of any party or on the court's own motion and after notice and hearing, the court may make any order necessary to preserve and protect the safety and welfare of the child during the pendency of the appeal as the court may deem necessary and equitable. In addition to other matters, an order may:

(1) appoint temporary conservators for the child and provide for possession of the child;

(2) require the temporary support of the child by a party;

(3) restrain a party from molesting or disturbing the peace of the child or another party;

(4) prohibit a person from removing the child beyond a geographical area identified by the court;

(5) require payment of reasonable attorney's fees and expenses; or

(6) suspend the operation of the order or judgment that is being appealed.

Tex. Fam.Code Ann. § 109.001(a); see In re Boyd, 34 S.W.3d 708, 710–11 (Tex.App.-Fort Worth 2000, no pet.) (holding that intent of similar provision in family code was to extend power of trial court to enter temporary orders after an appeal has been perfected); see ...