in the Interest of E. W. N., a Child, 08-13-00345-CV

Background

Trial court (Sept. 27, 2011) named Father and Mother joint managing conservators and ordered Father to pay $1,500/month; Mother had exclusive right to designate child’s residence.
Father filed a notice of appeal on Dec. 20, 2011; appeal was docketed and later transferred among courts of appeals.
While that appeal was pending, Father filed a petition to modify (Jan. 12, 2012) seeking reduced child support and later sought temporary orders; he then filed a first amended petition seeking exclusive residence designation.
Mother moved to dismiss the modification suit for lack of jurisdiction; the trial court dismissed the amended petition without prejudice, reasoning the court of appeals had exclusive jurisdiction.
Father appealed the dismissal to this court; the court considered whether a trial court retains continuing, exclusive jurisdiction to modify orders while an appeal is pending and whether Section 109.001 permits temporary orders after appeal.
The Court affirmed dismissal, holding the appellate court acquired exclusive plenary jurisdiction once the appeal was perfected and the trial court’s plenary power to enter temporary orders under Section 109.001 had expired.

Issues

Issue	Father’s Argument	Mother’s Argument	Held
Whether the trial court retained continuing, exclusive jurisdiction to modify its Sept. 27, 2011 order while Father’s appeal was pending	Trial court kept continuing, exclusive jurisdiction under Fam. Code §§155.001–.003 and §156.002 and could modify despite the pending appeal	Once Father perfected his appeal, the court of appeals had exclusive plenary jurisdiction; trial court lacked jurisdiction to entertain the modification	Appeal divested the trial court of plenary jurisdiction; dismissal was correct
Whether the trial court could enter temporary orders after the 30‑day statutory window while appeal pending	Trial court could consider/enter temporary relief outside the 30‑day window to address changed circumstances	Trial court’s authority to enter temporary orders is limited by Fam. Code §109.001 timing; after plenary power expired it could not	Trial court’s temporary-order power is limited; §109.001 provides a narrow 30‑day framework and recognizes appellate exclusivity
Available remedies when circumstances change during appeal	Trial court can still act (Father)	Appellate remedies or suspension of order are appropriate; trial court cannot act once appellate jurisdiction attaches (Mother)	Court identified remedies: trial court temporary orders within statutory window; appellate court may suspend the order; appellate court can abate and remand for emergency hearing
Proper procedural response to emergency changed facts during appeal	File new modification in trial court (Father)	Seek relief in appellate court or ask trial court to act within its window (Mother)	Litigants may move the court of appeals to abate and remand for emergency trial-court hearing or ask appellate court to suspend the order; acceleration is generally not a reliable remedy

Key Cases Cited

Saudi v. Brieven, 176 S.W.3d 108 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (appeal divests trial court of certain post-judgment powers)
Robertson v. Ranger Ins. Co., 689 S.W.2d 209 (Tex. 1985) (appellate jurisdiction and limitation on trial court’s post-appeal power)
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008) (statutory construction: give effect to every provision)
Hudson v. Markum, 931 S.W.2d 336 (Tex. App.—Dallas 1996, writ denied) (authority cited by Father supporting trial-court continued action)
Campos v. Ysleta Gen. Hosp., Inc., 879 S.W.2d 67 (Tex. App.—El Paso 1994, writ denied) (discussing abatement and remand to trial court for necessary action)
Rothwell v. Rothwell, 775 S.W.2d 888 (Tex. App.—El Paso 1989, no writ) (abatement to obtain findings and conclusions)
Avila v. State, 856 S.W.2d 260 (Tex. App.—El Paso 1993, no pet.) (abatement in criminal context for mandatory findings)