in Re Connie v. Harrison
14-15-00054-CV
| Tex. App. | Jan 16, 2015Background
- Divorce and custody suit filed 2006; decree entered 2010; appeal led to remand; proceedings on enforcement motions continued in 2014–2015.
- Clifford (father) filed two motions for enforcement (Sept. 2 and Oct. 13, 2014) alleging multiple violations of interim orders and permanent injunctions (denying possession, contacting children, school enrollment). He sought contempt, jail, fines and clarification.
- Connie (mother) orally moved to dismiss both enforcement motions at the Dec. 4, 2014 hearing, arguing the pleadings lacked the specificity mandatory under Tex. Fam. Code §157.002 (dates, places, manner, and clear relief).
- Judge Franklin denied Connie’s oral motion to dismiss but sua sponte treated it as special exceptions, sustained most exceptions, and ordered Clifford to replead specific violations and relief; Clifford later filed amended enforcement motions.
- Relator Connie seeks mandamus relief from the court of appeals, arguing the trial court abused its discretion by denying dismissal and lacked authority to convert her dismissal motion into special exceptions, thereby granting Clifford an impermissible second bite to replead.
Issues
| Issue | Plaintiff's Argument (Connie) | Defendant's Argument (Clifford) | Held by Trial Court (ruling under review) |
|---|---|---|---|
| Whether the trial court abused discretion by denying Connie’s motion to dismiss enforcement motions for noncompliance with Fam. Code §157.002 | §157.002 is mandatory; motions lacked required specificity (manner, place, time, and clear relief), so dismissal was required | Motions sufficiently identified orders, dates, and violations; defects go to weight not jurisdiction; some errors are typographical and/or curable | Court denied dismissal but found pleadings deficient and sustained most perceived special exceptions (ordered repleading) |
| Whether the court had authority to sua sponte convert Connie’s motion to dismiss into special exceptions and allow repleading | Trial court lacked express or implied authority to transform a dismissal motion into special exceptions; doing so gave opposing party unfair second chance; order void/abuse of discretion | The court interpreted the oral attack as special exceptions and gave movant opportunity to cure under §157.064(b) | Court treated the oral motion as special exceptions, sustained many, and allowed repleading |
| Whether statutory procedure (special exceptions/§157.064) required prior filing of exceptions before dismissal motion | No statutory requirement that respondent must file special exceptions first; Chapter 157’s provisions are mandatory for movant notice but permissive on exceptions; dismissal was proper when pleading fails statutory content | If exceptions are proper remedy, statute contemplates opportunity to replead without additional service when exceptions sustained; court’s action consistent with §157.064(b) | Court relied on special-exception concept and ordered repleading under perceived exceptions |
| Whether mandamus is appropriate because Connie has no adequate remedy at law | Denial of dismissal and allowance to replead permits relitigation and risk of incarceration/fines; mandamus necessary to prevent loss of rights and improper order | Trial court order is interlocutory and reviewable later; alternative remedies (appeal) may be adequate | Trial court entered order denying dismissal and directing repleading (subject of mandamus petition) |
Key Cases Cited
- Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004) (defining abuse of discretion standard)
- In re FirstMerit Bank, N.A., 52 S.W.3d 749 (Tex. 2001) (mandamus standard; extraordinary remedy)
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus relief principles)
- In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204 (Tex. 2009) (mandamus standards)
- In re CSX Corp., 124 S.W.3d 149 (Tex. 2003) (burden to show abuse of discretion)
- In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004) (mandamus remedy where rights otherwise lost)
- Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex. 1985) (mandamus as extraordinary remedy)
- Rivercenter Assocs. v. Rivera, 858 S.W.2d 366 (Tex. 1993) (mandamus availability)
- Ex parte Edgerly, 441 S.W.2d 514 (Tex. 1969) (contempt notice must show when, how, and by what means contempt occurred)
- In re Barlow, 899 S.W.2d 791 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (Chapter 157 enforcement pleading requirements and analysis of special-exception permissiveness)