in the Interest of S.J.G. and J.O.G., Children
05-13-01351-CV
| Tex. App. | Apr 9, 2015Background
- Parents divorced in 2006 in Brazos County; decree named them joint managing conservators and gave mother (Tullos) right to designate children’s primary residence; child support ordered.
- Mother moved with children to Oklahoma in 2007; father (Greenwald) moved to Dallas County in 2011.
- Greenwald filed a modification and a motion to transfer venue in Brazos County; Tullos asked the Brazos court to decline jurisdiction because she and the children lived in Oklahoma.
- Brazos Court (April 5, 2012) transferred child support to Dallas County and stayed custody issues, conditioning the stay on the parties filing a custody suit in Oklahoma; Oklahoma court has not assumed jurisdiction.
- Greenwald asked the Dallas County court to set aside the Brazos order; Dallas denied that motion, later modified child support, and ordered Greenwald to pay $15,404.24 in attorney’s fees to Tullos’s counsel.
Issues
| Issue | Plaintiff's Argument (Greenwald) | Defendant's Argument (Tullos) | Held |
|---|---|---|---|
| 1. Whether Dallas Court erred by refusing to set aside Brazos Court’s April 5, 2012 order | Brazos court lacked subject-matter jurisdiction and had a mandatory duty to transfer entire case to Dallas under venue statutes, so its custody retention/stay was void | Brazos had initial and continuing exclusive jurisdiction over custody; Dallas cannot collaterally attack a valid Brazos order | Court: Brazos had subject-matter jurisdiction and order was not void; Dallas correctly denied motion to set aside |
| 2. Whether award of $15,404.24 attorney’s fees to Tullos’s counsel was erroneous | Only Fam. Code §156.005 authorizes fees in non-enforcement modification suits and it applies only to frivolous/harassing suits; Greenwald’s actions had merit so fee award improper | Trial court may award reasonable fees under Fam. Code §106.002 in suits affecting parent-child relationship; court found good cause and awarded fees under §106.002 | Court: Fees properly awarded under §106.002; no error in fee award |
| 3. Whether Dallas Court abused discretion by not contacting Oklahoma court under UCCJEA §152.110(d) | Dallas was required to inform and request Oklahoma to hold its proceeding in abeyance when simultaneous proceedings existed | UCCJEA applies to custody proceedings; Dallas proceedings involved child support, not custody, so provision inapplicable | Court: No abuse; Dallas not required to contact Oklahoma under §152.110(d) |
Key Cases Cited
- Browning v. Placke, 698 S.W.2d 362 (Tex. 1985) (a non-void judgment of a court of general jurisdiction cannot be collaterally attacked in another court of equal jurisdiction)
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (a court of equal jurisdiction lacks authority to set aside another court’s order unless the order is void)
- Tucker v. Thomas, 419 S.W.3d 292 (Tex. 2013) (discusses statutory bases for attorney’s fees in suits affecting parent–child relationships)
- Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002) (judicial discretion to award attorney’s fees in family-law suits)