Opinion
No. 01-02-01016-CV
Opinion issued April 10, 2003
Panel consists of JUSTICES HEDGES, JENNINGS, and ALCALA.
On Appeal from the 306th District Court, Galveston County, Texas, Trial Court Cause No. 99FD0854.
OPINION
This is an appeal from a family violence protective order. In three issues, appellant argues that the trial court erred in refusing to transfer venue, in issuing a protective order on a defective application, in admitting evidence of violations of a prior protective order, and in issuing a protective order which effectively terminated access to his child without a finding that such was in the best interest of the child. We affirm.
Background Facts
Appellant, Charles Alan Knight ("Husband"), was divorced on January 19, 2000, from appellee, Julie Ann Knight ("Wife"), by final decree of divorce issued by the 306th District Court of Galveston County. The decree appointed Husband and Wife joint managing conservators of their two children. On August 12, 2002, Husband filed a motion to modify parent-child relationship, seeking exclusive custody of the children, in the 306th District Court, the court of continuing, exclusive jurisdiction. SeeTex. Fam. Code Ann. § 155.001 (Vernon 2002). On August 19, 2002, after first non-suiting all of his claims, Husband filed a motion to transfer venue to Harris County.
On August 20, 2002, Wife filed a motion to modify in a suit affecting the parent-child relationship in the 306th District Court, requesting that she be appointed sole managing conservator of the children. Then, on August 21, 2002, Wife filed a petition for enforcement of child support order, alleging that Husband was behind in his child support payments, and filed a separate application for a family violence protective order. SeeTex. Fam. Code Ann. §§ 81.001-87.004 (Vernon 2002).
The application for a protective order was heard by the trial court on September 9, 2002, and the trial court signed a family violence protective order on September 11, 2002. On September 18, 2002, after Wife non-suited her motion to modify in a suit affecting the parent-child relationship, Husband's motion to transfer venue was heard by the trial court. On September 20, 2002, the trial court signed an order denying his motion to transfer venue, and Husband filed his notice of appeal from the protective order. Wife's petition for enforcement of child support order remains pending.
Jurisdiction
As a threshold issue, we must determine whether we have jurisdiction to review the protective order. Several Texas courts of appeals have addressed the issue of whether protective orders rendered under the Family Code are appealable orders. We agree with those courts holding that a protective order disposing of all parties and claims is a final, appealable order, while a protective order entered during the pendency of a divorce action is not. This case is in an in-between posture: while the divorce action between the parties had long been concluded before the trial court issued the protective order, Wife's motion to modify parent-child relationship and her petition to enforce child support order were pending at the time the application for the protective order was filed. Thus, we must determine whether the pendency of those claims, like the pendency of an original action for divorce, prevented the protective order from being a final, appealable order.
See Bilyeu v. Bilyeu, 86 S.W.3d 278, 280-81 (Tex. App.-Austin 2002, no pet.); James v. Hubbard, 985 S.W.2d 516, 518 (Tex.App.-San Antonio 1998, no pet.); Ruiz v. Ruiz, 946 S.W.2d 123, 124 (Tex.App.-El Paso 1997, no writ);see alsoCooke v. Cooke, 65 S.W.3d 785, 786 (Tex.App.-Dallas 2001, no pet.) (The fact that a post-divorce protective order may be modified does not mean the trial court has not finally disposed of all issues); In re Cummings, 13 S.W.3d 472, 474-75 (Tex.App.-Corpus Christi 2000, no pet.) (post-divorce protective order disposed of all issues and parties and was final judgment).
Because Wife non-suited her motion to modify seven days after the protective order was issued, the pendency of that motion ceased to be any potential bar to the appealability of the protective order at that time. Thus, we have jurisdiction to review the protective order unless the pending petition for enforcement of child support prevented the protective order from becoming final and appealable.
Under the reasoning of several Texas courts of appeals, a protective order that does not dispose of all issues and claims is not a final, appealable order. We do not believe, however, that the mere existence of anypending issues between the parties renders a protective order interlocutory. Unlike an original divorce action, SAPCR [Suit Affecting Parent-Child Relationship], or a motion to modify a previous SAPCR order, a petition to enforce child support is not a "new suit," but rather an action to enforce a prior judgment. This distinction is significant.
Actions for divorce or for a SAPCR seek to establish the parameters of future contact or depend on evidence of past contact between the parties. A petition for enforcement of child support, by contrast, does not raise or seek to adjudicate issues of contact between family members, and does not depend upon evidence of past contacts between family members to resolve the issue presented. The only issue in a petition to enforce is whether there is a child support arrearage.
A protective order under the Family Code is more akin to a divorce or a SAPCR than to a child support enforcement action. It logically follows that a protective order issued during the pendency of a divorce or a SAPCR is not a final, appealable order, because similar issues remain to be determined between the parties. Its purpose is to protect some members of the family from violence at the hands of other members of the family by imposing restrictions upon contact between those family members for a time certain.
Because of the differences between a protective order and an action for enforcement of child support, it makes little sense to hold that the pendency of the latter cause should render the former order interlocutory and unappealable. We conclude that we have jurisdiction to review the protective order because the still pending issue between the parties to collect past-due child support is not related in any way to the purpose, issues, or evidence relevant to the protective order.
Venue
In his first issue, Husband argues that the trial court erred in denying his motion to transfer venue. Husband argues that transfer of venue was mandatory under section 155.201 of the Family Code, applicable to suits affecting the parent-child relationship. Family violence protective order applications, however, have different venue requirements. An application for a protective order, which is filed after a final order is rendered in a suit for dissolution of marriage or a suit affecting the parent-child relationship, may be filed either in the county and court which rendered the final order, here the 306th District Court, in the county in which the applicant resides, or in the county in which the respondent resides. Tex. Fam. Code Ann. §§ 82.003, 85.063 (Vernon 2002); Cooke v. Cooke, 65 S.W.3d 785, 790 (Tex.App.-Dallas 2001, no pet.) ("The family code requires that all applications for protective orders involving parties to a prior divorce action must be filed in the court that rendered the final divorce decree.").
Here, the parties were divorced and custody of their children was originally determined in a final order rendered by the 306th District Court on January 19, 2000. Wife subsequently filed her application for a protective order in the 306th District Court, the court that previously rendered the final divorce decree between the parties. Pursuant to section 85.063 of the Family Code, venue of the application for a protective order was proper in the 306th District Court, and the trial court did not err in refusing to transfer venue. We overrule Husband's first issue.
This case also presents issues regarding the proper effect to be given a motion to transfer venue filed before there were any live pleadings on file to transfer and the effect of the failure to hold a hearing on the motion until after the protective order was issued. We need not decide these issues, however, because we conclude that venue was proper, and thus, the trial court could not have erred in refusing to transfer venue.
Defects in the Application
In his second issue, Husband argues that Wife's application for protective order was defective because it did not attach a copy of a prior, expired, protective order; thus, the trial court erred in admitting evidence of Husband's violations of that prior protective order. Family Code section 82.008 requires that a copy of an expired protective order be attached to an application. Tex. Fam. Code Ann. § 82.008 (Vernon 2002). However, because Husband neither objected nor made those arguments to the trial court, he has failed to preserve those issues for consideration on appeal in this Court. Tex.R.App.P. 33.1; Cooke, 65 S.W.3d at 790. We overrule Husband's second issue.
Against Public Policy
In his third issue, Husband argues that the trial court erred in issuing a protective order effectively terminating his access to his children without an express finding that such termination was in the best interest of the children, as violative of Texas public policy as expressed in sections of the Family Code other than those regarding protective orders. Because Husband did not object and did not make those arguments to the trial court, he has failed to preserve those issues for consideration on appeal in this Court. Tex.R.App.P. 33.1; Cooke, 65 S.W.3d at 790. Moreover, we note that the protective order's provisions in this case were all expressly authorized by section 85.022 of the Family Code, and as such, were in compliance with the public policy of the State as expressed by the legislature in that section. We overrule Husband's third issue.
Judicial Notice
Husband has filed a motion asking this Court to take judicial notice of a criminal complaint filed against wife over three months after the hearing and order from which this appeal is taken. Generally, so long as a party provides proof of another court's records, a court can take judicial notice of another court's records in a cause involving the same subject matter between the same parties. Krishnan v. Ramirez, 42 S.W.3d 205, 222-23 (Tex.App.-Corpus Christi 2001, pet. denied); Sparkman v. Kimmey, 970 S.W.2d 654, 659 (Tex.App.-Tyler 1998, pet. denied). While a court may take judicial notice that a pleading has been filed in a cause, the court may not take judicial notice of the truth of allegations in that pleading. See Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.App.-Austin 1994, no writ).
We also note that the criminal complaint had not yet been filed when the trial court issued the ruling which is the subject of this appeal. Appellate courts are reluctant to take judicial notice of evidence when the trial court was not afforded the opportunity to examine and take into consideration that evidence. Tran v. Fiorenza, 934 S.W.2d 740, 742 (Tex.App.-Houston [1st Dist.] 1996, no writ). We decline to take judicial notice of the criminal complaint later filed in another court, when that complaint did not exist at the time the trial court issued the ruling from which this appeal is taken.
Conclusion
We hold that we have jurisdiction to review the protective order in this case. We further hold that the trial court did not err in refusing to transfer venue of the protective order proceeding, and that Husband has failed to preserve his other issues for appellate review in this court. We affirm the protective order of the trial court. All pending motions are denied.