Kirby v. Chapman

• Decision Date: 29 February 1996
• Docket Number: No. 02-94-225-CV,02-94-225-CV
• Citation: 917 S.W.2d 902
• Parties: Janet Hilliard Harris KIRBY, Appellant, v. Joanie Harris CHAPMAN, Jack Harris and Joanne Harris, and the Honorable Randy Catterton, Appellees.
• Court: Texas Court of Appeals

Page 902

917 S.W.2d 902

Janet Hilliard Harris KIRBY, Appellant, v. Joanie Harris CHAPMAN, Jack Harris and Joanne Harris, and the Honorable Randy Catterton, Appellees.

No. 02-94-225-CV.

Court of Appeals of Texas,

Fort Worth.

Feb. 29, 1996.

Rehearing Overruled April 11, 1996.

Linda S. Aland, P.C., Dallas, for appellant.

Chester G. Ball, Ball, Landrith & Kulesz, P.C., Arlington, Tim Curry, Criminal District Attorney, Ann Diamond, Assistant District Attorney, Fort Worth, James A. Stephenson, Bedford, for appellees.

Before CAYCE, C.J., and DAY and DAUPHINOT, JJ.

OPINION

DAY, Justice.

This is a child custody case concerning the minor child Matthan Brent Harris. Appellant Janet Kirby, Brent's natural mother, appeals from a custody modification order removing her as sole managing conservator and naming appellees Joanie Chapman and Jack and Joanne Harris as joint managing conservators. In ten points of error, Kirby complains that the trial court lacked subject matter jurisdiction and erred in other different respects; that the trial judge, appellee Hon. Randy Catterton, should have recused himself; and, that the assigned judge who heard the recusal motion erred in several different respects.

For the reasons below, we affirm the judgment of the trial court.

THE PROCEEDINGS BELOW

Janet Kirby's oldest child is Blake Hilliard, who was born during Kirby's previous marriage to Jim Hilliard. Kirby married Grady Harris in 1986, but they separated shortly after Kirby became pregnant with her second son, Brent Harris, and the couple divorced in 1987. Kirby then subsequently married Julian Hernandez, and that marriage produced one child, Brian Hernandez. Grady Harris also remarried to appellee Joanie Harris, and Grady Harris, Jr. was the product of that marriage. Grady Harris, Sr. was killed in an automobile accident on October 11, 1989. Joanie Harris subsequently married Lee Chapman. Appellees Jack and Joanne Harris are the parents of Grady Harris, Sr. and Brent's grandparents.

The divorce of Kirby and Grady Harris was heard in the 231st District Court in Tarrant County on June 16, 1987, and the decree was signed by Judge Maryellen Hicks, the presiding judge of the 231st District Court at that time. The later divorce action between Janet Kirby and Julian Hernandez was heard on June 28, 1991 in the 325th District Court and the decree was signed by the 325th's presiding judge, Judge Mary Sean O'Reilly. Several motions to modify in suits affecting the parent-child relationship were filed by both Kirby and Grady Harris in the 231st District Court between 1987 and 1989. After Grady, Sr.'s death, a motion in intervention was filed in the 231st District Court on October 30, 1989 by Jack and Joanne Harris and Joanie Chapman (then Joanie Harris), seeking possessory conservatorship of Brent. The order on this motion was signed on June 28, 1991 by the presiding judge of the 325th District Court. The only reference in the record relating to this change of courts is a docket entry on February 6, 1991 saying, "Case transferred/assigned to 325th District Court, the Honorable Mary Sean O'Reilly, Presiding, by agreement of both lawyers & judges. [signed] Mary W. Hicks."

Judge Hicks was appointed to the Court of Appeals by Governor Ann Richards shortly before January 1993. State Senator Chris Harris, the brother of Grady Harris and Brent's uncle, supported the nomination of Randy Catterton to fill the vacancy in the 231st District Court. Senator Harris testified that, in his view, there was an unprecedented show of support for Randy Catterton's appointment by the members of the Tarrant County family law bar. Governor Richards did appoint Randy Catterton as Presiding Judge for the 231st District Court.

On March 4, 1994, Janet Kirby filed in the 325th District Court a motion to modify and a show cause order. A motion for continuance was filed by Jack and Joanne Harris on March 8, 1994. The record indicates that also on March 8, 1994, a docket entry was made, initialled by Judge O'Reilly, the presiding judge of the 325th District Court, that reads, "Case assigned back to the 231st District Ct.; hearing on 3-11-94 set on 231st District Ct. docket; attys. of record notified by 325th Co-ordinator this date. MSO'R". The Harrises and Joanie Chapman filed an answer and counter-motion to modify on March 22, 1994. Also on March 22, 1994, Judge Catterton signed an order transferring the action back to the 231st District Court.

The case has proceeded in the 231st District Court. Kirby waived her right to a jury trial and proceeded with a bench trial before Judge Catterton. The trial commenced on April 12, 1994, and on June 7, 1994, Judge Catterton signed an order removing Janet Kirby as sole managing conservator and making the Harrises and Joanie Chapman the joint managing conservators of Brent. The court's findings of fact and conclusions of law were signed on July 7, 1994.

In her motion for new trial, filed on July 6, 1994, Kirby brought to Judge Catterton's attention that she learned of Senator Harris' involvement with Judge Catterton's appointment and that had she been made aware of this before the trial, she would have filed a motion to recuse. On July 25, 1994, Judge Catterton viewed the accusations included in the motion for new trial as a motion to recuse and did not hear the merits of the new trial motion, but instead allowed Kirby one week to cure the formal deficiencies and to file a formal Motion to Recuse. A formal motion to recuse was filed on July 28, 1994, and a hearing was held before the Hon. Robert P. Brotherton on August 26, 1994. Judge Brotherton denied the motion to recuse, and he signed findings of fact and conclusions of law from the recusal hearing on September 20, 1994. Kirby filed a "Request for Deletion, Amendment, and Additional Findings of Fact and Conclusions of Law" on September 29, 1994. Judge Brotherton denied Kirby's request on October 25, 1994.

THE SUBJECT MATTER JURISDICTION CLAIM

In point of error one, Kirby argues that the trial court, the 231st District Court, lacked subject matter jurisdiction when it rendered the judgment removing Kirby as sole managing conservator and making the Harrises and Joanie Chapman the joint managing conservators of Brent. The basis of Kirby's argument is that the 325th District Court, and not the 231st District Court, was the proper court of continuing jurisdiction.

The version of the Texas Family Code in effect at the relevant times of the present case provided in pertinent part:

Modification of Order

A court order or the portion of a decree that provides for the support of a child or the appointment of a conservator or that sets the terms and conditions of conservatorship for, support for, or access to a child may be modified only by the filing of a motion in the court having continuing, exclusive jurisdiction of the suit affecting the parent-child relationship as provided by Section 11.05 of this code. Any party affected by the order or the portion of the decree to be modified may file the motion.

TEX.FAM.CODE ANN. § 14.08(a) (Vernon 1986). ¹ The original divorce decree between Grady Harris and Kirby was entered in the 231st District Court. Original continuing jurisdiction began, therefore, with that court.

The Family Code further provided:

Continuing Jurisdiction

[W]hen a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing, exclusive jurisdiction of all parties and matters provided for under this subtitle in connection with the child. No other court of this state has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 or 17.06 of this code.

TEX.FAM.CODE ANN. § 11.05(a) (Vernon 1986) (emphasis added). ² It is clear, then, that the Legislature intended the transfer procedures provided by the Family Code in sections 11.06 or 17.06 to be the only mechanisms for the proper transfer of suits affecting the parent-child relationship. ³ Johnson v. Pettigrew, 786 S.W.2d 45, 47-48 (Tex.App.--Dallas 1990, no writ). We also agree with Justice Enoch's analysis in Johnson that the exclusive transfer provisions provided in the Family Code negate the ability to transfer cases freely between courts in the same county. Id. The necessary question becomes, then, was the present cause properly transferred to the 325th District Court as provided for by section 11.06 of the Code.

The only provision of section 11.06 that potentially applies to the present case is subsection (d), which provides:

Transfer of Proceedings Within the State

For the convenience of the parties and witnesses and in the interest of justice, the court, on the timely motion of any party, may transfer the proceeding to a proper court in any other county in the state.

TEX.FAM.CODE ANN. § 11.06(d) (Vernon 1986). ⁴ This section requires a timely motion by any party to the suit to transfer the proceedings. We hold that, absent a motion from a party and an order of transfer to the 325th District Court, the 231st District Court retained continuing, exclusive jurisdiction.

The Texas Supreme Court came to the same conclusion in Alexander v. Russell, a case with many similarities. There, as here, the judge of the 243rd District Court disqualified himself and transferred the case to the 327th District Court; however, the supreme court held that the 243rd District Court retained jurisdiction because the attempted transfer was not for an authorized reason under section 11.06. 699 S.W.2d 209, 210 (Tex.1985). The Dallas Court of Appeals came to the same conclusion in Johnson, where the court noted the absence of a motion by a party and an order of transfer. Johnson, 786 S.W.2d at 48.

In the present case, regardless of the docket entry made by Judge Hicks on February 6, 1991 stating that the case was transferred to the 325th District Court by agreement of the parties and judges,...