In the Interest of C.F., Jr., A Child--Appeal from 45th Judicial District Court of Bexar County

MEMORANDUM OPINION
Nos. 04-03-00383-CV & 04-03-00384-CV
IN THE INTEREST OF C.F., Jr., a Child
From the 45th Judicial District Court, Bexar County, Texas
Trial Court Nos. 90-CI-03512 & 94-CI-00861
Honorable David Berchelmann, Jr., Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: March 3, 2004

AFFIRMED

We withdraw our opinion and judgment dated January 7, 2004 and issue the following opinion and judgment in their stead. Our opinion and judgment reflect the disposition of both appellate cause numbers 04-03-00383-CV and 04-03-00384-CV. Our opinion and judgment of January 7, 2004 remain unchanged in all other respects.

Jacqueline Silva ("Jackie") appeals the trial court's order in an action arising from motions seeking to enforce child support obligations. Jackie presents two issues on appeal, contending: (1) unpaid child support from temporary orders could be reduced to an arrearage judgment despite the dismissal of the divorce action for want of prosecution; and (2) the trial court erred in imposing Rule 13 sanctions. We affirm the trial court's order.

Background

Jackie filed for divorce from Charles Felan, Sr. ("Charles") in March of 1990 (the "1990 Action"). Temporary orders were entered requiring Charles to pay Jackie child support. The case was dismissed for want of prosecution on July 16, 1991. Jackie and Charles disagree about whether they reconciled before the case was dismissed.

Charles filed for divorce in 1994 (the "1994 Action"), and a final divorce decree was entered, granting custody of the couple's child to Charles's father, Edward Felan. Subsequent to the divorce, the parties testified that Edward and Jackie began alternating custody every two weeks although no order was entered memorializing this arrangement. In 1997, Jackie and Charles were ordered to pay Edward child support.

In 2002, the Attorney General filed a motion to enforce the past-due child support owed by Jackie, seeking an arrearage judgment. Jackie filed motions in both the 1994 Action and the 1990 action, alleging that Charles owed her past-due child support. The motions were originally heard by a master and then appealed to Judge Berchelmann. At the hearing on December 11, 2002, the trial court ruled that Charles did not owe any past-due child support and awarded Charles attorney's fees. On January 30, 2003, Charles filed a motion to sign orders, which was set for a hearing on February 19, 2003. Jackie did not attend the hearing. The trial court signed an order imposing sanctions against Jackie and her attorney, requiring Jackie and her attorney to pay Charles's attorney's fees.

Child Support

In her first issue, Jackie contends that the trial court erred in concluding that the unpaid child support arising from the temporary orders entered in the 1990 Action could not be reduced to an arrearage judgment because the underlying divorce action had been dismissed for want of prosecution. Jackie relies on amendments to the Texas Family Code to reject Charles's reliance on the holding in Rosser v. Rosser, 620 S.W.2d 802 (Tex. App.--Houston [14th Dist.] 1981, writ dism'd).

In Rosser v. Rosser, the appellant filed for divorce, and temporary child support orders were entered. 620 S.W.2d at 803. In 1979, the trial court dismissed the divorce case for want of prosecution. Id. In 1980, appellant filed a motion for contempt, citing appellee's failure to pay child support accruing after the dismissal, and a motion to retain the case on the docket. Id. The appellee filed a plea in abatement, contending that the court did not have jurisdiction over the case because it was not reinstated within six months after the dismissal. Id. The trial court sustained the plea in abatement and refused to entertain appellant's motion for contempt. Id.

On appeal, the Houston court held:

Appellant's arguments concerning the doctrine of continuing jurisdiction in suits affecting the parent-child relationship, the best interest of the child, and conflict with the Family Code are insupportable. Failure to prosecute abandons the suit. Abandonment of a divorce suit eliminates the need for continued enforcement of temporary child custody and support orders, and the basis for continuing jurisdiction in the matter of child support. The doctrine of continuing jurisdiction was never intended to, and does not now, apply to divorce suits dismissed for want of prosecution in which no final determinations of child custody and support were made, and which were not dismissed mistakenly.

Id. at 804 (citations omitted). The Texas Supreme Court has noted the holding in Rosser, stating, "We agree that this is a correct statement of the law." Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993); see also Ward v. Ward, No. CH65008489-01, 1990 WL 751412 (Va. Cir. Ct. 1990) (noting holding in Rosser and concluding that dismissal of divorce action terminated obligations to pay under pendente lite support orders).

Jackie contends that the amendments to section 157.005 of the Texas Family Code extended a trial court's jurisdiction over temporary orders, "permitting enforcement for temporary child support orders regardless of other restrictive statute of limitations or the status of the underlying divorce itself." Jackie further asserts that section 157.261 provides that unpaid support becomes an immediate judgment, "requiring a trial court to conform the judgment and enforce the award."

Jackie's reliance on section 157.005 and 157.261 is misplaced. (1) Section 157.005 defines the contours of a trial court's continuing jurisdiction. See In re T.L.K., 90 S.W.3d 833, 837-38 (Tex. App.--San Antonio 2002, no pet.) (noting that section 157.005(b) no longer contains jurisdictional limitation on a trial court's ability to confirm the total amount of child support arrearages); In re S.C.S., 48 S.W.3d 831, 833 (Tex. App.--Houston [14th Dist.] 2001, pet. denied) (noting section 157.005 defines contours of the court's jurisdiction). However, neither section 157.005 nor section 157.261 permits a trial court to revive its jurisdiction once that jurisdiction is lost after a case is dismissed for want of prosecution. When the 1990 Action was dismissed for want of prosecution, the trial court ceased to have continuing jurisdiction to enforce the temporary child support order, and the trial court in the 1994 Action did not have continuing jurisdiction to enforce the child support orders entered in the 1990 Action after the 1990 Action was dismissed for want of prosecution. See Rosser, 620 S.W.2d at 804.

In Rosser, the court noted, "Want of prosecution in divorce cases more strongly indicates reconciliation than continued marital discord." 620 S.W.2d at 804. For this reason, we do not believe the amendments to section 157.005 and 157.261 were intended to supplant the analysis in Rosser as approved by the Texas Supreme Court in Little.

Sanctions

The imposition of Rule 13 sanctions involves the satisfaction of a two-part test. Estate of Davis v. Cook, 9 S.W.3d 288, 297 (Tex. App.--San Antonio 1999, no pet.). First, the party moving for sanctions must demonstrate that the opposing party's filings are groundless, and second, it must be shown that the pleadings were filed either in bad faith or for the purposes of harassment. Id. Rule 13 defines "groundless" as having no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law. Tex. R. Civ. P. 13. When determining whether sanctions are appropriate, the trial court must examine the facts available to the litigant and the circumstances existing when the litigant filed the pleading. Estate of Davis, 9 S.W.3d at 297. The imposition of Rule 13 sanctions is within the sound discretion of the trial court, and we set aside that discretion only upon a clear showing of abuse of discretion. Id. A trial court abuses its discretion in imposing sanctions only if it bases the order on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Id. The test is whether the trial court acted without reference to any guiding principles. Id.

Jackie contends that she was not given notice that Rule 13 sanctions were being addressed and that the sanctions order failed to include a statement of good cause. The record does not support these contentions.

At the hearing before Judge Berchelmann, Charles's attorney made express reference to his motion for sanctions, stating, "Now, may I address - I also filed, Your Honor, my - my motion for sanctions pursuant to Rule 13 of the Texas Rules of Civil Procedure because the two motions for enforcement brought by Mr. Vera on behalf of Jacqueline Felan Atkinson Silva were - were improper. They were brought for the purpose of harassment and they are not brought in good faith." Charles's attorney then explained to the trial court the reasons for contending that the motions were groundless. Charles's attorney concludes, "And because he could have discovered this with just a little bit of research, I would ask the Court to consider that Mr. Felan has incurred debt to include attorney fees, and I would ask the Court to award me attorney fees, and I can justify that under oath if the Court desires, in the amount of $1,815." In response to other issues raised, Jackie's attorney attempted to clarify that the only issues before the court were the issues that Jackie had specified in writing and "the issue that - that Mr. Garcia [Charles's attorney] set for - on his Rule 13 motion for sanctions." Jackie's attorney then proceeded to respond to the sanctions motion, stating that he was "going to Mr. Garcia's issues" and presented argument on his basis for filing the motions for enforcement. Finally, in his closing argument, Jackie's attorney argued, "In the area of attorney fees, Judge, in order to find us in violation of Rule 13, we would have had to brought something in bad faith for purpose of harassment and those type of things and I think the evidence clearly shows we did not do that, we brought this action against Mr. Charles Felan, Senior based on the law and the statute as they stand today." Accordingly, the record shows that the Rule 13 motion for sanctions was an issue before the trial court at the hearing, and Jackie had an opportunity to present evidence and respond to the motion.

With regard to the inclusion of a statement of "good cause" in the order, the trial court expressly found that "good cause exist[ed] to sanction" Jackie and her attorney because the 1990 Action had been dismissed, and orders for child support cannot survive the dismissal of the case itself. In addition, the trial court found that Jackie sought enforcement of child support from the 1994 Action even though no support was, in fact, owed.

Finally, Jackie contends that the trial court abused its discretion because the pleadings were not groundless or filed in bad faith. Jackie contends that she prevailed in her challenge relating to claiming her son as a dependent on tax returns; therefore, her actions were not groundless. The sanctions, however, relate to the motions for enforcement she filed against Charles, not the question of the tax returns which only involved Edward. Furthermore, Jackie contends that the amendments to the Texas Family Code provided a basis for arguing that the law announced in Rosser was no longer applicable and that no evidence was introduced to show bad faith. Assuming that the Family Code Amendments provided a basis for the motion for enforcement regarding the 1990 Action, the trial court could still have based its sanctions on the motion for enforcement filed in the 1994 Action. In her pleadings, Jackie claimed that she was owed $350 from September 23, 1997, and $367.00 from November 21, 1997. Charles introduced the financial activity report generated by the Office of Attorney General to show that no past-due child support was owed. Accordingly, evidence was introduced to show that no basis in fact supported the motion for enforcement. Furthermore, Charles's attorney asked the court to take judicial notice that a document entitled "BCCSIS Payment History Panel" was attached as an exhibit to Jackie's motion to enforce reflecting that Charles had paid $350.00. The trial court could have found that Jackie's motion was brought in bad faith since she attached an exhibit reflecting a payment that she did not note as an offset in her pleading. Accordingly, the trial court did not abuse its discretion in ordering Jackie and her attorney to pay Charles's attorney's fees as a sanction in relation to the pleading filed in the 1994 Action.

Conclusion

The trial court's order is affirmed.

Catherine Stone, Justice

1. Jackie also cites this court's decision in In re Gonzalez, 981 S.W.2d 313 (Tex. App.--San Antonio 1998, pet. denied); however, that decision is readily distinguishable because final orders were entered in the underlying action, and the underlying action was not dismissed for want of prosecution.