In re A.S.M.

• Decision Date: 18 August 2005
• Docket Number: No. 2-04-387-CV.,2-04-387-CV.
• Citation: 172 S.W.3d 710
• Parties: In the Interest of A.S.M., a Child.
• Court: Texas Supreme Court

172 S.W.3d 710

In the Interest of A.S.M., a Child.

No. 2-04-387-CV.

Court of Appeals of Texas, Fort Worth.

August 18, 2005.

Gregory Pitts, Fort Worth, TX, for Appellant.

Harris & Cook, L.L.P., David L. Cook, Chris Harris, Arlington, TX, for Appellee.

Panel B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

Appellant Linda Sue M. appeals from the trial court's orders denying and dismissing her petition to modify the parent-child relationship and awarding appellee attorney's fees as sanctions because she did not file the affidavit described in family code section 156.102.¹ In three issues, appellant contends that the trial court should not have required her to file an affidavit or, in the alternative, should have abated her suit rather than dismiss it, that the trial court abused its discretion in imposing sanctions against her, and that the evidence does not support the reasonableness and necessity of the $5,000 attorney's fees award. We affirm.

On October 31, 2003, the trial court entered an Agreed Order in Suit to Modify Parent-Child Relationship between appellant and the child's father, appellee Gerardo M., Jr., naming appellant and appellee as joint managing conservators of A.S.M. The order designated appellant as the parent with the exclusive right to determine the primary residence of the child but restricted the area in which the child could reside to Tarrant County, Texas and contiguous counties. On December 29, 2003, appellant filed a First Amended Petition to Modify the Parent-Child Relationship,² requesting that the part of the agreed order restricting the child's domicile to Tarrant County, Texas or contiguous counties be removed. On January 13, 2004, appellee filed a counter-petition to modify, in which he alleged that appellant's petition was groundless and brought in bad faith and for the sole purpose of harassment because it was barred by res judicata.³ He also filed an answer on the same date, asking the trial court to refuse to go forward on appellant's petition because she had not attached the affidavit described in family code section 156.102.

On April 7, 2004, the trial court held a preliminary hearing and entered temporary orders sending the parties to counseling. That same day, the trial court ruled on the parties' joint motion to refer the case to the associate judge for trial and set the trial for July 1, 2004. On July 1, the parties appeared for trial, and the trial court took judicial notice of its file. The trial court found that appellant's case should be dismissed because she did not file the section 156.102 affidavit. Thus, the trial court did not rule on the merits of either party's petitions. The trial court further found that appellant's petition was groundless, filed in bad faith, and brought for the sole purpose of harassment. Accordingly, the trial court awarded appellee $5,000 in attorney's fees as sanctions.

At appellant's request, the trial court filed findings of fact and conclusions of law. The trial court found that

5. [Appellant] did not execute and attach an affidavit to her First Amended Petition as provided by Tex. Fam.Code § 156.102(b).

. . . .

13. When the case was called to trial . . . [appellant] still had not filed the affidavit required by Tex. Fam.Code § 156.102(b).

14. The uncontroverted evidence shows that due to the actions of [appellant], [appellee] incurred reasonable and necessary attorney's fees in an amount in excess of $5,000.00.

Based on these findings, the trial court concluded that

1. The Agreed Order was res judicata of the child's best interests as of October 31, 2003.

. . . .

3. The . . . First Amended Petition sought to modify the designation of the person having the exclusive right to designate the primary residence of the child the subject of this suit.

4. [Appellant] was required to execute and attach an affidavit to her First Amended Petition[] as provided by Tex. Fam.Code § 156.102(b).

5. [Appellant] failed to execute and attach an affidavit to her First Amended Petition as provided by Tex. Fam.Code § 156.102(b).

6. The Court was therefore required to deny the relief sought by [appellant] without a hearing.

. . . .

8. The filing of [appellant's] . . . First Amended Petition. . . less than two months after the "Agreed Order in Suit to Modify Parent-Child Relationship" was signed on October 31, 2003, coupled with [appellant's] failure to comply with Tex. Fam.Code § 156.102(b) showed that her . . . First Amended Petition [was] filed in bad faith, [was] groundless and [was] brought for the sole purpose of harassment. [Appellant's] prosecution of her suit despite her complete failure to comply with the provisions of Tex. Fam.Code § 156.102(b) warranted sanctions.

9. [Appellee] is entitled to an award of reasonable and necessary attorney's fees in the amount of $5,000.00.

In her first issue, appellant challenges the trial court's conclusion that she was required to file a section 156.102 affidavit with her petition. We review conclusions of law de novo. Simmons v. Kuzmich, 166 S.W.3d 342, 346 (Tex.App.-Fort Worth 2005, no pet.); see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998) (citing cases holding that legal questions subject to de novo review), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999).

Subsection (a) of family code section 156.102, which is entitled "Modification of Exclusive Right to Determine Primary Residence of Child Within One Year of Order," provides that

[i]f a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed not later than one year after the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit shall execute and attach an affidavit as provided by Subsection (b).

Tex. Fam.Code Ann. § 156.102(a). Subsection (b) requires that the affidavit contain, along with supporting allegations, at least one of the following allegations:

(1) that the child's present environment may endanger the child's physical health or significantly impair the child's emotional development;

(2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or

(3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.

Id. § 156.102(b). The only allegations that could be applicable to the facts of this case are (1) and (2). A trial court must deny the relief sought and refuse to schedule a hearing on the suit unless the court determines that the affidavit alleges adequate facts to support one or more of the allegations set forth in subsection (b). Id. § 156.102(c). Thus, in the absence of an affidavit, or if the petitioner has attached an affidavit that does not meet the requirements of section 156.102(b) and (c), the trial court should refuse to hear the merits of the matter.

The Dallas court of appeals has determined that the plain language of section 156.102(a) shows that the affidavit requirement applies only to suits "seeking to modify the designation of a person having the exclusive right to determine the primary residence of a child." Ellason v. Ellason, 162 S.W.3d 883, 886 (Tex.App.-Dallas 2005, no pet.) (holding that section 156.102 did not apply to suit seeking to name parent as person with exclusive right to determine primary residence of child because order gave both parents joint right to determine primary residence of child); In re R.C.S., 167 S.W.3d 145, 148 (Tex.App.-Dallas, 2005, no pet. h.) (same, but order did not designate anyone as person with exclusive right to determine child's primary residence). Appellee contends that "[t]he removal of a geographic domicile restriction is [also] a modification of the `designation of the person having the right to designate the primary residence of the child.'" Thus, we must determine whether appellant's suit seeking to modify or remove the geographical restriction constitutes a "suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child." Tex. Fam.Code Ann. § 156.102(a) (emphasis added).

In determining whether section 156.102 applies to this situation, we may consider, among other things, the "object sought to be attained" by the statute and the "consequences of a particular construction" even if the wording of section 156.102(a) is unambiguous. Tex. Gov't Code Ann. § 311.023 (Vernon 2005); In re J.A.B., 13 S.W.3d 813, 816 (Tex.App.-Fort Worth 2000, no pet.).⁴ Construction of a statute must be consistent with its underlying purposes and the policies it promotes. Northwestern Nat'l County Mut. Ins. Co. v. Rodriguez, 18 S.W.3d 718, 721 (Tex.App.-San Antonio 2000, pet. denied).

Texas's public policy for all suits affecting the parent-child relationship is set forth in the family code. Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex.2002); see TEX. FAM.CODE ANN. § 153.001(a) (Vernon 2002); In re E.S.S., 131 S.W.3d 632, 640-41 (Tex.App.-Fort Worth 2004, no pet.) (relying on public policy set forth in section 153.001(a) in determining whether agreement between parties in involuntary parental rights termination case violated public policy). Section 153.001(a) provides that

(a) The public policy of this state is to[]

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;

(2) provide a safe, stable, and nonviolent environment for the child; and

(3) encourage parents to share in the rights and duties of...