State v. Naylor

• Decision Date: 07 January 2011
• Docket Number: No. 03–10–00237–CV.,03–10–00237–CV.
• Citation: 330 S.W.3d 434
• Parties: STATE of Texas, Appellant,v.Angelique S. NAYLOR and Sabina Daly, Appellees.
• Court: Texas Court of Appeals

330 S.W.3d 434

STATE of Texas, Appellant,

v.Angelique S. NAYLOR and Sabina Daly, Appellees.

No. 03–10–00237–CV.

Court of Appeals of Texas, Austin.

Jan. 7, 2011.

James D. Blacklock, Office of the Attorney General, Austin, TX, for State of Texas.James J. Scheske, Akin, Gump, Strauss, Hauer & Feld, LLP, Robert B. Luther, Law Offices of Robert B. Luther, P.C., Austin, TX, for Angelique S. Naylor and Sabina Daly.Before Chief Justice JONES, Justices PURYEAR and HENSON.

OPINION

DIANE M. HENSON, Justice.

The State appeals from the final divorce decree of appellees Angelique Naylor and Sabina Daly, asserting that section 6.204 of the family code deprives the trial court of subject-matter jurisdiction over the appellees' divorce. See Tex. Fam.Code Ann. § 6.204(c) (West 2006) (prohibiting state agency or political subdivision from giving effect to “right or claim to any legal protection, benefit, or responsibility asserted as a result” of same-sex marriage). Because the State is not a party of record and lacks standing to appeal, we dismiss this appeal for want of jurisdiction.

BACKGROUND

Naylor and Daly were married under Massachusetts law on September 27, 2004. Naylor and Daly then returned to their home in Texas, where they adopted a child, J.D., and started a real estate business together. The couple later separated, and in January 2009, Naylor filed a suit affecting the parent-child relationship (“SAPCR”) in Travis County district court, requesting that she and Daly be named joint managing conservators of J.D. and that she be given the exclusive right to designate J.D.'s primary residence. The parties later settled the SAPCR, and an agreed order was issued. On December 3, 2009, Naylor filed a pro se petition for divorce in the same cause number as the SAPCR, later amending her petition to add, among other things, a request for modification of the parent-child relationship. In response, Daly moved to declare the marriage void under family code section 6.204. See id. § 6.204(b) (West 2006) (marriage between persons of same sex is void in Texas); see also id. § 6.307 (West 2006) (providing that either party to void marriage “may sue to have the marriage declared void”). In the alternative, Daly requested temporary orders under the family code governing the use of the parties' property and ordering payment of interim attorney's fees. See id. § 6.502 (West 2006). The trial court then granted a continuance to allow Naylor to obtain counsel, and issued temporary orders related to the parties' property. Daly subsequently filed a motion to compel and for sanctions, asserting that Naylor had failed to comply with the temporary orders.

On February 9, 2010, the trial court held a hearing on a number of the parties' pending motions related to both the motion to modify the parent-child relationship and the property division. The trial court repeatedly urged the parties to settle as many issues related to the parent-child relationship as possible, emphasizing that it was in the best interest of the child to minimize litigation in that regard. The trial court heard evidence on both the child custody and property division issues, including evidence suggesting that due to the parties' real estate business, the division of property would be a complex process involving multiple corporate entities, a large amount of real property, various creditors, and possibly inadequate accounting. The testimony revealed that the parties had accumulated twelve properties in the course of their business enterprise, in part by borrowing money from family and friends, and that many of these properties were in or near foreclosure. On this basis, Daly sought temporary orders that would allow her to sell certain properties, which would then free up funds to help pay creditors.

The hearing was continued to the next day, at which time the trial court questioned whether it could issue temporary orders if it lacked subject-matter jurisdiction over the parties' divorce. After noting that final resolution of the property division would be substantially delayed by any litigation regarding the validity of the marriage, the trial court again encouraged the parties to settle, stating:

We have, in summary, a legal mess. And we have two people who have decided, decided, not to do good accounting.... So we have an incredibly complex legal problem. We have an incredibly complex factual problem with ... poor accounting. And we have a situation where we have two people who, if I've ever seen it, have an incentive to try to resolve this.

The trial court then heard additional testimony relevant to the division of property, as well as testimony by Daly's counsel that due to the complexity of the property division and the potential for litigation regarding the validity of the marriage, interim attorney's fees and costs in the amount of $50,000 would be necessary to continue the case through final trial, with another $12,000 in interim fees for the SAPCR. The trial court then repeated its earlier concerns about the parties' property division:

We're going to break now and resume with you at 2:00 to give you maximum opportunity to resolve some issues.... [S]o far, I don't understand your accounting. I don't understand how you ran these businesses. I don't understand how you possibly did tax returns. I don't understand how a CPA could sign a tax return when there's no documentation on loans. I'm really curious about all that. And quite frankly, that can take you into some other sticky wickets.... I don't know where this is all headed.... And it's only going to get stickier as you continue down this path, which you can choose to do, or you can find a way to extricate yourself. I wish you good luck with that, and I will see you at 2:00.

The parties subsequently came back on the record and announced that they had reached a settlement of all issues in the case.¹ The parties' agreement was then read into the record, and the trial court stated, “The divorce is granted pursuant to the agreement you have recited into the record, and the division of your estate as set forth by your attorneys is approved as a just and right division of your estate.” The hearing then concluded. At that time, the State had not yet attempted to intervene in the case, and no party had presented any arguments or filed any pleadings challenging or defending the constitutionality of any provision of the Texas Family Code.

The next day, February 11, 2010, the State filed a petition in intervention, arguing that the trial court lacked jurisdiction to grant the divorce because Naylor and Daly were of the same sex. The State further asserted that the sole vehicle for dissolving the parties' Massachusetts marriage was an action for voidance under section 6.307 of the family code. Id. § 6.307. Both Daly and Naylor filed responses seeking to strike the State's petition in intervention.² The State also filed a plea to the jurisdiction, reiterating the arguments made in its petition in intervention and seeking to have the suit dismissed for lack of subject-matter jurisdiction.

On March 31, 2010, the trial court held a hearing on Daly's motion for entry of final judgment. At the outset of the hearing, the trial court clarified that the hearing would be limited to Daly's motion for entry of final judgment and the timeliness of the State's intervention, as the parties had not properly set any other matter on the court's docket. After observing that a “trial court can simply not consider the intervention because it's not timely,” and that the State could arguably reassert its late-intervention arguments on appeal, the trial court signed the written divorce decree without expressly ruling on the State's petition in intervention or plea to the jurisdiction. The State then filed its notice of appeal.

DISCUSSION

Because the State's standing to intervene in this case after rendition of judgment implicates this Court's subject-matter jurisdiction, we will first address the timeliness of the intervention. See M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex.2001) (“Standing is a prerequisite to subject-matter jurisdiction, and subject-matter jurisdiction is essential to a court's power to decide a case.”).

Generally, an appeal is available only to parties of record, so that non-parties who have not properly intervened in the trial court lack standing to pursue an appeal of the trial court's judgment. See Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex.1965) (stating that remedy by appeal is “available only to parties of record”); Gore v. Peck, 191 S.W.3d 927, 928–29 (Tex.App.-Dallas 2006, no pet.) (dismissing appeal for lack of standing because appellant failed to timely intervene); see also Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam) (“The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.”).

While the Texas Rules of Civil Procedure do not impose a deadline for intervention, see Tex.R. Civ. P. 60, the general rule is that a party may not intervene after final judgment unless the judgment is set aside. See Texas Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex.2008); First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex.1984) (“[A] plea in intervention comes too late if filed after judgment and may not be considered unless and until the judgment has been set aside.”). The State's petition in intervention in this case was filed on February 11, one day after the trial court rendered judgment in open court. See Dunn v. Dunn, 439 S.W.2d 830, 831–33 (Tex.1969) (holding that oral rendition of divorce constituted final judgment, despite fact that written judgment had not yet been signed); Giles v. Giles, 830 S.W.2d 232, 237 (Tex.App.-Fort Worth 1992, no writ) (holding that judgment was rendered when trial court orally granted divorce in open court); see also S & A Restaurant Corp. v. Leal, 892...