IN RE: LISA DENISE SANTOS--Appeal from 94th District Court of Nueces County

NUMBER 13-05-345-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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IN RE: LISA DENISE SANTOS

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On Petition for Writ of Mandamus

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   M E M O R A N D U M  O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion Per Curiam

On May 26, 2005, relator, Lisa Denise Santos, filed a petition for writ of mandamus asserting that respondent, the Honorable Jack E. Hunter, presiding judge of the 94th District Court of Nueces County, lacked jurisdiction to grant interim custody orders pertaining to relator=s daughter, I.E.T. Relator also concurrently filed an emergency motion requesting that this Court (1) vacate the AInterim Temporary Orders@ which granted temporary custody of relator=s daughter to Michelle Moore in Cause No. 04-07371-C, (2) dismiss Cause No. 04-07371-C for lack of standing, and (3) set a hearing on relator=s motion for attorneys= fees and sanctions. In response to this emergency motion, we temporarily stayed all orders and requested a response from the real parties in interest, James Eric Tankersley and Michelle Moore.

Background

Relator=s daughter, I.E.T., was born on December 12, 2004. At the time of I.E.T.=s birth, relator was legally married to Adelfino Medina. On December 22, 2004, Michelle Moore, claiming to be I.E.T.=s paternal grandmother, filed a ASuit Affecting Parent-Child Relationship@ in Nueces County, numbered Cause No. 04-07301-C, as well as a request for a temporary restraining order preventing relator and James Tankersley, Moore=s son, from removing I.E.T. from Moore=s possession. Moore was granted interim custody by the trial court.

At the same time, relator=s divorce from Medina was pending in the 79th District Court of Jim Wells County as Cause No. 04-07-42658-CV. After granting Moore interim custody, respondent transferred Moore=s suit to the 79th District Court.

Analysis

Generally, mandamus relief is only available when the petitioner can show (1) the trial court committed a clear abuse of discretion or the violation of a duty imposed by law and (2) the petitioner has no other adequate remedy. See Walker v. Packer, 827 S.W.2d 833, 839 40 (Tex. 1992). Mandamus is the appropriate vehicle to challenge the trial court=s temporary orders in pending family law litigation, as temporary orders under the Texas Family Code are not subject to interlocutory appeal. See Tex. Fam. Code Ann. ' 105.001(e) (Vernon Supp. 2004-05); see also In re McCoy, 52 S.W.3d 297, 301 (Tex. App.BCorpus Christi 2001, orig. proceeding). Thus, as relator has no other adequate remedy, we must determine whether the trial court committed a clear abuse of discretion.

In her pleadings, relator alleges that Moore lacks standing to initiate a suit affecting the parent-child relationship. Without standing, a court lacks subject matter jurisdiction to hear the case and must dismiss it. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 44 (Tex. 1993). If a district court lacks jurisdiction over a claim because of a lack of standing, then its decision does not bind the parties and is void. See State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994).

The Texas Family Code provides a specific list of parties who may initiate a suit affecting the parent-child relationship; these parties include parents, a guardian, and a qualified government agency, among others. See Tex. Fam. Code Ann. ' 102.003 (a) (Vernon Supp. 2004-05). Moore, who claims to be the paternal grandmother of I.E.T., is not a person qualified to initiate a suit of this nature. See id. Furthermore, Moore=s relationship to I.E.T. has not been legally determined. As stated above, at the time of I.E.T.=s birth, her mother was legally married to Adelfino Medina. Under Texas family law, a man is legally presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. See id. ' 160.204(a). Although James Tankersley has filed an Aaffidavit of status@ asserting his paternity of I.E.T., this alone is insufficient to rebut the legal presumption of paternity in Medina. See id. at ' 160.204(b). Without an official adjudication of paternity, or a valid denial of paternity filed by the presumed father, the presumption that Medina is I.E.T.=s father must stand.[1] See id. Therefore we conclude that the trial court lacked jurisdiction to grant Moore custody of I.E.T., and its order was therefore void. Furthermore, its failure to dismiss the case for lack of jurisdiction constitutes a clear abuse of discretion.[2]

Relator also requests that we order the trial court to set a hearing on relator=s motion for attorney=s fees and sanctions. We review a trial court's ruling on a motion for sanctions for an abuse of discretion. Herring v. Welborn, 27 S.W.3d 132, 143 (Tex. App.BSan Antonio 2000, pet. denied). There is a presumption that pleadings are filed in good faith. See GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). Relator alleges in her pleadings that Moore=s suit was groundless and brought in bad faith and solely for the purpose of harassing relator. We have reviewed the record, however, and find that there is no evidence of bad faith or harassment, and we conclude that relator has failed to overcome the presumption of good faith.

Accordingly, we conditionally grant relator=s petition for writ of mandamus, and order the trial court to vacate its interim temporary orders dated January 18, 2005 and to dismiss the underlying proceeding for lack of jurisdiction. The writ will not issue unless respondent fails to comply with this Court=s directive. We deny relator=s request that this Court order the trial court to set a hearing on her motion for attorney=s fees and sanctions.

PER CURIAM

Memorandum opinion delivered and filed

this 16th day of June, 2005.

[1]We note that the 79th District Court of Jim Wells County, in which the divorce case between Medina and relator is proceeding, may adjudicate the paternity of I.E.T, see Tex. Fam. Code Ann. ' 160.610 (Vernon 2002), and may issue temporary orders. See Tex. Fam. Code Ann. '' 105.001, 156.006 (Vernon Supp. 2004-05).

[2]Moore also claimed to have standing to file the underlying suit based on her status as I.E.T.=s grandmother under the family code=s provision allowing grandparents to file suit in order to request managing conservatorship. See Tex. Fam. Code. Ann. ' 102.004(a) (Vernon 2002). However, because Moore has established as yet no legal relationship to the child, she also lacks standing to assert this claim.