Catherine F. Jordan v. James O. Terrell--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-90-195-CV

CATHERINE F. JORDAN,

Appellant

v.

JAMES O. TERRELL,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court # 84-2952-1

O P I N I O N

This is an appeal from an order modifying visitation. On September 6, 1989, James O. Terrell filed a "Motion for Contempt and to Post Security, and Motion to Modify," alleging that Catherine F. Jordan had failed to allow court-ordered visitation on a number of occasions and requesting that the visitation order be modified because it had become unworkable under the circumstances. At the end of the motion, a "Notice of Hearing" stated that "a hearing on the foregoing motion is set for the 9 day of Oct. 1989, at 10 o'clock A.M., before this Court in the courthouse at Waco, Texas." The notice had been signed by the judge of the 19th District Court, where the original divorce decree had been entered in May 1985. The motion to modify which is the subject of this appeal was the third such motion filed by Terrell in approximately three years.

Jordan was served with citation and a copy of the motions and notice of hearing on September 16 and she filed an answer on October 9, 1989, at 8:56 A.M. She appeared at the hearing at the designated time, 10 A.M., at which time Terrell waived the hearing on his motion for contempt and announced "ready" on the motion to modify. Jordan announced "not ready," asserting to the visiting judge that necessary parties had not been joined, proper notice had not been given, and that she had not had adequate time to join other necessary parties and to prepare for trial. The court overruled her objections, proceeded to hear evidence on the motion to modify visitation, and on August 6, 1990, entered the order from which she now appeals.

Jordan complains that the trial court erred in proceeding to trial on the motion to modify because: (1) Terrell failed to comply with the notice requirements of Rules 245 and 21(a); (2) she was deprived of her constitutional right to due process; (3) all parties in interest had not been served or otherwise appeared before the court; (4) the evidence was legally and factually insufficient to support the order modifying visitation; and (5) the evidence was legally and factually insufficient to support a finding that a material change in circumstances had occurred that warranted a modification. We will reverse and remand the cause due to the failure to comply with mandatory requirements of the Family Code.

Jordan's points one and two assert a lack of notice under the rules that resulted in a denial of due process. Because of our disposition of point three, we do not find it necessary to address these points, other than to observe that the Family Code provides that a motion to modify visitation constitutes a new suit requiring service of citation under the Rules of Civil Procedure and that notices of hearing should be given in the same manner as in any new civil proceeding. See Tex. Fam. Code Ann. 14.08(b) (Vernon 1986); Tex. R. Civ. P. 245 (Vernon 1976) (10 days at the time of this hearing, now 45 days for a first setting).

In points three and four, Jordan asserts that the court erred in proceeding to trial on the motion to modify in the absence of all parties in interest. The court overruled Jordan's objection and her motion to join Terrell's parents, James F. and Audrey Terrell of Daingerfield. The Terrells had been named possessory conservators in the decree that their son was seeking to modify and are necessary parties. See Tex. Fam. Code Ann. 11.09 (Vernon Supp. 1992). By prior order, possession of the child during "spring break" had been set aside to Terrell's parents. The "standard visitation" order that the court entered on August 6, 1990, provided that Terrell would have possession of the child during spring break in even-numbered years and Jordan in odd-numbered years. Id. at 14.033. Thus, the orders conflicted about visitation during spring break in odd-numbered years.

In granting the motion to modify and entering the standard order of visitation, the court stated on the record that any conflict between the prior order and the standard order would be resolved by deferring to the standard order to the exclusion of the grandparent possessory conservators. However, this declaration by the court was not included in the modified visitation order, which is not ambiguous. We cannot interpret the modification order in light of any subsequent or prior statements of the court evidencing judicial intent when the judgment was rendered. See Thermo Products v. Chilton Ind. School Dist., 647 S.W.2d 726, 734 (Tex. App. Waco 1983, writ ref'd n.r.e.).

Although Terrell assured the court that any conflict between the visitation awarded him under the standard order and that of his parents under the prior order could be worked out between them, Jordan cannot be assured that she will be similarly accommodated. Jordan argues that she will be unable to enforce this latest order without encroaching upon the rights of Terrell's parents and that complete relief regarding visitation could not be granted and the best interests of the child fully considered in their absence. We agree.

The Family Code provides that possessory conservators are entitled to service of citation upon the filing of a petition in a suit affecting the parent-child relationship. See Tex. Fam. Code Ann. 11.09 (Vernon Supp. 1992). Section 11.08 further requires that a petition must include the names and places of residence of possessory conservators or other persons having access to the child under a court order. Id. at 11.08(b)(7). The record reflects that neither requirement was met.

We hold that the court had no discretion to proceed with the hearing and erred in overruling Jordan's objection to a hearing on the motion to modify visitation rights in the absence of and without notice to the other possessory conservators. The visitation rights of the grandparent possessory conservators were clearly affected by the court's order, yet they were not joined in the suit. Notification was not only proper but necessary. See id. at 11.09. Points three and four are sustained.

We do not reach Jordan's complaints in points five through eight attacking the factual and legal sufficiency of the evidence.

We reverse the judgment and remand the cause for a new trial.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and remanded

Opinion delivered and filed January 22, 1991

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