Date: 07-07-2017

Case Style: In the Interest of A.T.R. and S.B.R.

Case Number: 05-16-00574-CV

Judge: David L. Bridges

Court: Texas Court of Appeals, Fifth District on appeal from the 470th Judicial District Court of Collin County

Plaintiff's Attorney: Luke Gunnstaks and Ashlie Thomas Vieira

Defendant's Attorney: Gene Sollows for Cloe E. McQuerry

Deterrean Gamble, Rande K. Herrell, Mary Stanley Renouf, and
John B. Worley for the Office of the Attorney General

Description: This appeal originates from a suit affecting the parent-child relationship in which
appellant Father has repeatedly sought to modify or clarify child support. The issue raised on
appeal is procedural in nature; therefore, we provide a procedural history as necessary rather than
the underlying facts regarding the divorce or SAPCR, as they are not relevant for disposition of
this appeal. TEX. R. APP. P. 47.1. In a single issue, Father challenges the February 15, 2016
order, which incorporates the October 9, 2013 sanctions order, because he alleges the trial court
erred by issuing the sanctions order after dismissing the case for want of prosecution without
first reinstating the case pursuant to Texas Rule of Civil Procedure 165a.1 We affirm.
Father and appellee Mother divorced in September 2008 and are the parents of two
children. Father filed his first motion to modify child support on March 31, 2009. He filed an
1 Father raised a second issue in his brief regarding child support credits; however, he expressly waived this issue during oral argument.
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amended motion on September 10, 2010. The trial court signed an order on his amended motion
on September 30, 2011.
Father later filed a “motion to modify order in suit affecting parent child relationship” on
March 13, 2012. Mother filed a motion to compel discovery and for sanctions, which the trial
court granted on August 15, 2013. The case was continued until September 10, 2013 but neither
party appeared. The trial court dismissed the case for want of prosecution on September 10,
2013. The record indicates neither party knew the trial court dismissed for want of prosecution.
Subsequently, on October 4, 2013, Mother filed another motion for sanctions because
Father failed to comply with the August 15, 2013 sanctions order by neither providing answers to
discovery nor paying the ordered attorney’s fees. Mother requested that Father’s pleadings be
stricken and that he be ordered to pay all attorney’s fees previously ordered and in conjunction
with the present motion as child support. On October 9, 2013, the trial court signed an order on
Mother’s motion for sanctions, which included language striking all pending motions and
petitions, dismissing Father’s case with prejudice, and ordering $4,038.22 as sanctions and child
support. Father did not challenge this order.
On December 10, 2014, Father again challenged the child support ordered in the
September 30, 2011 order by filing a motion for clarification of child support. Mother answered
on January 12, 2015 and asserted res judicata based on the October 9, 2013 order.
The trial court held a hearing on Father’s motion, which included arguments about the
September 10, 2013 dismissal order and subsequent sanctions order. The trial court orally stated
at the conclusion of the hearing that when “the second order was signed the Court still retained
plenary power to modify, reform, correct its judgment. And my ruling is that the second order
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on motion for sanctions is a revised order of dismissal, not a new order.” This oral
pronouncement was later incorporated into the order signed February 15, 2016.2
Father requested findings of fact and conclusions of law. The trial court made findings
and conclusions regarding the “Court’s order on Motion to Clarify Child Support Order, entered
on February 15, 2016, clarifying the Order in Suit to Modify Parent-Child Relationship and
Judgment for Support . . . entered on September 26, 2011.”3 The trial court made the following
conclusions of law regarding prior orders:
1. The Order on Motion for Sanctions entered on October 9,
2013 was entered during the Court’s period of plenary power
following dismissal of the cause for want of prosecution on
September 10, 2013.
2. The Court had jurisdiction to enter the Order on Motion for
Sanctions on October 9, 2013.
3. The Order on Motion for Sanctions entered on October 9,
2013 is a valid, enforceable order.
Father argues on appeal that the trial court erred by concluding that the October 9, 2013
order was a “revised dismissal order” because the case was never reinstated pursuant to Texas
Rule of Civil Procedure 165a. Mother responds the trial court acted during its plenary power to
modify the September 10, 2013 dismissal for want of prosecution, and “nothing in Texas
jurisprudence requires that a dismissed case be reinstated before the dismissal order itself can be
modified, corrected or reformed” under Texas Rule of Procedure 329b(d). We agree with
Mother.
Absent the filing of certain motions not at issue in this case, a trial court’s plenary power
to act does not expire until thirty days after the court has signed a judgment. See TEX. R. CIV. P.
2 The order states, “the post-dismissal ‘Order on Motion for Sanctions’ signed 10/09/2013 is a revised order of dismissal which revised the
‘Order of Dismissal for want of jurisdiction’ signed September 10, 2013.” This is the order Father challenges on appeal.
3 The record indicates the trial court signed the order on September 30, 2011.
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329b(d). Father does not dispute that the trial court signed the October 9, 2013 sanctions order
during its plenary jurisdiction; rather, he argues the trial court did not have authority to sign the
order without first reinstating the case.
To support his argument, Father relies on In re R.C.M., No. 2-09-080-CV, 2010 WL
1267759 (Tex. App.—Fort Worth Apr. 1, 2010, no pet.) (mem. op.). In that case, the trial court
dismissed the case for want of prosecution and the mother filed a motion to reinstate. Id. at *2.
She subsequently filed a motion for contempt against the father for failing to pay child support.
Id. at *1. The trial court granted the contempt motion without ruling on the motion to reinstate.
Id. at *2. The father appealed the contempt order. Id. at *1. The issue before the court was
“whether the trial court had jurisdiction to enter an order . . . after it dismissed [mother’s] motion
for enforcement of child support for want of prosecution fifty days earlier and no written order of
reinstatement was ever signed.” Id. The court of appeals concluded the contempt order was void
because the trial court never signed an order of reinstatement. Id. at *5. In reaching this
conclusion, the court of appeals was unpersuaded by the mother’s argument that the trial court
had plenary power under rule 329b to vacate the dismissal order and that the trial court’s order
acted as a reinstatement order. Id. at *2. The court stated that to conclude that rule 329b
“authorizes the trial court to reinstate a case by simply signing an order” would “eviscerate the
mandates of Rule 165a,” which requires specific procedures for reinstating a case. Id. at *4.
We do not find R.C.M. persuasive or controlling authority. Rather, we conclude Scott &
White Memorial Hospital v. Schexnider, 940 S.W.2d 594 (Tex. 1996), which R.C.M. does not
acknowledge or attempt to distinguish, controls our decision. In that case, the supreme court
determined whether a trial court has power during its plenary jurisdiction to grant a motion for
sanctions though the motion is not pending when a nonsuit is filed. Id. at 595. The supreme
court concluded a trial court’s power to decide a motion for sanctions pertaining to matters
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occurring before judgment is no different than its power to decide any other motion during its
plenary jurisdiction. Id. at 596. It further stated the time during which the trial court has
authority to impose sanctions is limited to when it retains plenary jurisdiction and is not limited
by rule 162. Id. The trial court imposed sanctions while it retained plenary jurisdiction and
nothing within rule 162 or any other supreme court decision deprived the trial court of this
power. Id.
In reaching this conclusion, the supreme court also disagreed, in part, with Hjalmarson v.
Langley, 840 S.W.2d 153 (Tex. App.—Waco 1992, orig. proceeding). In that case, the
defendant moved for sanctions two weeks after the trial court signed an order granting the
plaintiff’s nonsuit. Id. at 154. Although the defendant filed the sanctions motion during the trial
court’s plenary jurisdiction, the trial court did not sign the order until after jurisdiction expired.
Id. The court of appeals concluded the sanctions order was void because the trial court ruled on
the sanctions without reinstating the case and because the trial court’s plenary power had
expired. Id. at 154–55. The supreme court stated the Hjalmarson court correctly concluded the
trial court could not grant the sanctions motion after its plenary jurisdiction expired; however, “it
incorrectly concluded that the trial court must reinstate the case before granting a Rule 13 motion
filed after a nonsuit.” Scott & White Mem’l Hosp., 940 S.W.2d at 596.
We do not believe a trial court granting a motion for sanctions during its plenary power
after dismissing a case for want of jurisdiction warrants a different result than that pronounced
by the Texas Supreme Court for sanctions entered during a trial court’s plenary power
subsequent to a nonsuit. See id. A trial court “need not reinstate a case” in order to exercise its
sanctions powers. Id.
In reaching this conclusion, we are unpersuaded by Father’s argument that such a
conclusion rewrites rule 165a out of the rules of civil procedure. Rule 165a provides the
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procedures necessary to reinstate a case; however, unlike the mother in R.C.M., it is undisputed
neither party here tried to reinstate the case. Therefore, the record here does not indicate the trial
court was trying to bypass rule 165a by signing the sanctions order instead of ruling on a motion
to reinstate. In fact, under these facts, forcing Mother to file a motion to reinstate a case she did
not initiate so she could seek sanctions the trial court had already once ordered prior to dismissal
would be a waste of judicial resources and involve further unnecessary attorneys’ fees and costs.
Finally, Father appears to challenge the trial court’s inclusion of language in the October
9, 2013 sanctions order that “DISMISSED with prejudice against refiling same” any pending
motions and petitions. He argues a dismissal with prejudice is a “legal fiction” in family law
cases and res judicata cannot apply.
We agree “the modification of the parent-child relationship is not inherently final.” See
Hargrave v. Lefever, 82 S.W.3d 524, 528 (Tex. App.—San Antonio 2002, no pet.). It is an
ongoing process allowing parties to file motions any time they allege circumstances have
substantially and materially changed. Id.; see also TEX. FAM. CODE ANN. § 156.401 (West Supp.
2016) & § 157.269 (noting court retains continuing jurisdiction to enforce child support orders).
However, Father has not identified any specific subsequent action that the trial court has or will
deprive him of, but rather seems to argue for some theoretical modification in the future to which
he may be deprived. To the extent he is arguing some theoretical harm, we are prohibited from
issuing an advisory opinion. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444
(Tex. 1993).
Moreover, the trial court made findings of fact and then concluded “Petitioner’s claim for
credits for any payments made on or before September 26, 2011 are barred by the doctrines of
res judicata and collateral estoppel.” Father has not challenged these findings or conclusions
regarding child support or the application of res judicata. It is not this court’s duty to review the
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record, research the law, and then fashion a legal argument on Father’s behalf when he has failed
to do so. See Graham v. Federated Dep’t Stores, Inc., No. 05-09-01310-CV, 2011 WL 3435371,
at *2 (Tex. App.—Dallas Aug. 8, 2011, no pet.) (mem. op.) (noting that to do so would require
court to “stray from our role as neutral adjudicator and become an advocate for that party”).
Father’s sole issue is overruled.

Outcome: We affirm the trial court’s order.

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