In the Interest of T.R.L., A Child--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION
No. 04-06-00523-CV
In the Interest of T.R.L., A Child
From the 229th Judicial District Court, Duval County, Texas
Trial Court No. DC-03-257
Honorable Alex William Gabert, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: May 30, 2007

 

AFFIRMED

 

This appeal arises from the denial of a motion for new trial and motion to vacate an order modifying the parent-child relationship between minor child T.R.L.'s mother and the non-parent sole managing conservators of T.R.L.

Factual Background

Josie Sanchez is the biological mother of minor child T.R.L. In 2004, Jessica and Rudy Silva ("the Silvas") were named the non-parent sole managing conservators of T.R.L. In 2005, Josie filed a petition seeking to modify the order of 2004. Josie sought enforcement or modification of the 2004 order and managing conservatorship. Josie failed to serve the alleged biological father, Edward Longoria. (1) The Silvas filed their own petition to modify the 2004 order, seeking to limit Josie's access to T.R.L., and child support from Josie. Both parties identified only each other as parties affected by the suit. The Silvas' modification was granted on May 25, 2006. On June 5, 2006, Josie filed a Motion for New Trial and a Motion to Vacate Order for Lack of Jurisdiction, on the ground that Longoria was not served. On July 25, 2006, the trial court denied Josie's motions. Josie now brings this appeal.

Analysis

The Texas Family Code provides for service of citation on each parent unless process has been waived in a suit affecting the parent-child relationship. Tex. Fam. Code Ann. 102.009 (Vernon 2006). Without service on Longoria, Josie argues, the May 25, 2006 order is void for lack of subject matter jurisdiction. The Silvas respond that Josie failed to serve Longoria, and is now estopped from raising that defect as grounds to void the order. Additionally, they argue the issue is one of personal jurisdiction and not subject matter jurisdiction because Longoria is not a necessary party. Finally, they argue Josie has no standing to assert Longoria's right to service.

We recently decided this very issue in Tristan v. Castillo and In re R.O.C., Nos. 04-05-00658-CV and 04-06-00041-CV, 2007 WL 752203 (Tex. App.--San Antonio Mar. 14, 2007, no pet.). For the reasons explained in Tristan and In re R.O.C., because Josie failed to object to the nonjoinder of Longoria before judgment was entered, she preserved nothing for our review. Tex. R. App. P. 33.1. Therefore, the trial court did not abuse its discretion in denying Josie's motion for new trial or motion to void the judgment for lack of jurisdiction.

Conclusion

Having overruled Josie's single appellate issue, we affirm the judgment of the trial court.

Rebecca Simmons, Justice

 

1. There is no proof in the record that Edward Longoria is T.R.L.'s father, but as that is not the issue before us, we proceed on the assumption Longoria is T.R.L.'s biological father.