In the interest of A.N.B., a child--Appeal from 326th District Court of Taylor County

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Opinion filed April 26, 2007

Opinion filed April 26, 2007

In The

Eleventh Court of Appeals

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   No. 11-04-00148-CV

__________

   IN THE INTEREST OF A.N.B., A CHILD

On Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 33,638-C

M E M O R A N D U M O P I N I O N

Sheila K. Barnes appeals the trial court=s April 8, 2004 order granting Ronald Duane Barnes=s motion to modify parent-child relationship. We affirm.

Background

Sheila and Ronald were married in 2000. Their daughter, A.N.B., was born in June 2001. In October 2001, Sheila filed a petition for divorce. The case was heard on November 13, 2002, and the trial court signed the original divorce decree on November 27, 2002. The trial court granted Sheila=s motion for new trial and set aside the 2002 divorce decree.

 

On September 2, 2003, the trial court signed the final divorce decree. Sheila and Ronald were appointed joint managing conservators of their daughter A.N.B. Three months later, Ronald filed a motion to modify seeking to be the person having the sole right to designate A.N.B.=s primary residence. After a hearing on April 7, 2004, the trial court granted Ronald=s motion and appointed Ronald sole managing conservator of A.N.B.

Sheila=s Bankruptcy Proceedings

After the granting of Sheila=s motion for new trial and prior to the entry of the 2003 final divorce decree, Sheila filed a voluntary petition for Chapter 13 bankruptcy on April 15, 2003. See 11 U.S.C. ch. 13. On November 14, 2006, the bankruptcy court entered an order lifting the statutory automatic stay under 11 U.S.C. ' 362(a) and granting retroactive relief. In its order, the trial court stated:

[T]he automatic stay herein under 11 U.S.C. ' 362(a) is annulled, and relief from the automatic stay pursuant to 11 U.S.C. ' 362(d) is granted to [Ronald], in regard to the litigation pending between [Ronald] and [Sheila] in the 326th District Court of Taylor County, Texas, Cause No. 33,638, such relief to be retroactive to September 2, 2003, on or before the entry of the Final Decree of Divorce therein.

Sheila filed a notice of appeal from this order and requested a stay pending her appeal. The bankruptcy court denied her request for a stay.

Sheila=s Sole Issue on Appeal

In her sole issue on appeal, Sheila attacks the validity of the 2003 divorce decree. Sheila argues that the 2003 decree is void because all proceedings in the trial court were automatically stayed pursuant to Section 362(a) when she filed her bankruptcy petition.[1] Sheila relies on the Texas Supreme Court holding in Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex. 1988), where the court stated that actions taken in the trial court during an automatic bankruptcy stay were Avoid, not merely voidable.@

Bankruptcy Court=s Order Concerning the Stay

 

While under Texas law actions taken by the state courts are void during an automatic stay, the bankruptcy court may validate such actions. Goswami v. Metro. Savs. & Loan Ass=n, 751 S.W.2d 487, 489 (Tex. 1988); In re Sensitive Care Inc., 28 S.W.3d 35, 38 (Tex. App.CFort Worth 2000, orig. proceeding); Lawson v. Gibbs, 591 S.W.2d 292, 295 (Tex. Civ. App.CHouston [14th Dist.] 1979, writ ref=d n.r.e.). The bankruptcy court=s November 14 order did exactly that: the order expressly validated actions taken by the trial court after the date Sheila filed her bankruptcy petition. Therefore, the 2003 divorce decree is not void, and Sheila=s issue is overruled.

This Court=s Holding

The order of the trial court is affirmed.

TERRY McCALL

JUSTICE

April 26, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

 

[1]We note that, at the time Sheila filed her bankruptcy petition, continuation of civil proceedings involving support obligations, child custody, visitation, and the dissolution of the marriage (not including property division) were not subject to the automatic stay. 11 U.S.C. '362(b)(2)(A) (1978). The current law provides the same exemptions from the automatic stay. 11 U.S.C. '362(b)(2)(A) (2006).

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