Summary
upholding trial court's award of attorney's fees under section 156.005 as sanctions for failure to file section 156.102 affidavit in custody modification suit
Summary of this case from In re A.S.MOpinion
No. 14-02-00700-CV.
Memorandum Opinion filed May 29, 2003.
Appeal from the 312th District Court, Harris County, Texas, Trial Court Cause No. 00-08969.
Affirmed.
Panel consists of Chief Justice BRISTER, and Justices FOWLER and EDELMAN.
MEMORANDUM OPINION
In this child custody modification case, Thomas E. Stashak ("Thomas") appeals a sanctions order (the "sanctions order") on the grounds that the trial court: (1) lacked jurisdiction to enter the order; and (2) used its erroneous dismissal of his modification action as a basis to award the sanctions. We affirm.
Background
Pursuant to the parties' October, 2000 divorce decree (the "decree"), Jacqueline Stashak ("Jacqueline") was awarded primary custody of their three daughters. In March of 2001, Thomas filed a petition (the "petition") to modify custody. Jacqueline filed a motion to dismiss and for sanctions on the grounds that Thomas had failed to provide an affidavit alleging the facts necessary to seek a modification within one year of the decree. The trial court signed an order dismissing the petition on March 8, 2002 (the "dismissal order") and the sanctions order on April 17, 2002.
The sanctions consisted of attorney's fees and costs of $8,449.00. Thomas does not challenge the sufficiency of the sanctions order to reflect the necessary information.
Jurisdiction
Appellant's first issue contends that the trial court lacked jurisdiction to enter the sanctions order on April 17, 2002 because its plenary power had expired thirty days after it entered the dismissal order on March 8.
After signing a final judgment, a trial court has plenary power for a minimum of thirty days to change the judgment. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). A trial court may not impose sanctions after the expiration of its plenary jurisdiction. Id. at 311.
Because the law does not require a final judgment to be in any particular form, whether a judicial decree is a final judgment must be determined from its language and the record in the case. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment issued without a conventional trial is final only if it either actually disposes of all claims and parties before the court, or it states with unmistakable clarity that it is a final judgment. Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex. 2001); Lehmann, 39 S.W.3d at 192, 200. Thus, for example, language that the plaintiff take nothing or that the case is dismissed shows finality if there are no other claims by other parties. Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002). However, a judgment does not have to resolve pending sanctions issues to be final. Lane Bank, 10 S.W.3d. at 312. The language of an order or judgment cannot make it interlocutory when, in fact, on the record, it is a final disposition of the case. Lehman, 39 S.W.3d. at 200.
In essence, appellant's argument in this case appears to be that, because resolution of the motion for sanctions was not necessary to a final judgment, the dismissal order must have been a final judgment because it disposed of all other matters in the case. Although a dismissal order that does not dispose of pending sanctions issues can be a final judgment, it does not logically follow, and appellant cites no authority providing, that such a dismissal order must always be final, i.e., that a trial court would lack authority to make one interlocutory if it chose. In this case, the dismissal order was titled, "Order of Dismissal . . . and Order Setting Hearing on Respondent's Motion for Sanctions . . .," and the operative portion provides:
4. The requirements set forth in Section 156.102 of the Texas Family Code have not been satisfied; therefore, Petitioner's Petition to Modify Parent-Child Relationship should be dismissed.
5. Respondent's request for attorney's fees and sanctions constitute a claim for affirmative relief and should be retained pending a final hearing.
IT IS THEREFORE ORDERED that Petitioner's Petition to Modify Parent-Child Relationship is hereby DISMISSED.
The Court finds that Respondent's Motion for Sanctions for Frivolous Filing shall specifically be, and is HEREBY RETAINED, and is hereby set for hearing at 9:00 a.m. on April 3, 2002.
Rather than expressing an intent to complete and conclude all proceedings in the case, the dismissal order expressly recognized the motion for sanctions as an outstanding claim for affirmative relief and stated an intention to hold further proceedings at a time certain to adjudicate that claim. Under these circumstances, the dismissal order was not a final judgment, the trial court did not lack plenary jurisdiction to enter its sanctions order on April 17, 2002, and appellant's first issue is overruled.
Sanctions
Appellant's second issue argues that the trial court should not have used the erroneous dismissal of his modification action as a basis for imposing sanctions. In this regard, appellant claims that the dismissal for failure to meet the affidavit requirement of section 156.102 of the Texas Family Code was in error either because he was not required to comply with that affidavit requirement or because he did comply with it.
If a trial court finds that a suit for modification has been filed frivolously, the court shall tax attorney's fees as costs against the offending party. Tex. Fam. Code Ann. § 156.005 (Vernon 2002). Sanctions are reviewed for abuse of discretion. Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). There is no abuse of discretion if some evidence reasonably supports the trial court's decision or if there are two permissible views of the evidence. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). In order to seek a modification within one year of the decree, Thomas's petition was required to have attached an affidavit alleging, with supporting facts, that the child's present environment may endanger the child's physical health or significantly impair the child's emotional development (or other matters not applicable here). See Tex. Fam. Code Ann. § 156.102(a), (b) (Vernon 2002). Neither Thomas's original, first amended, or second amended petitions, filed in March, May, and June, respectively, of 2001, or his supporting affidavit filed in June of 2001, even purported to comply with this requirement.
Butnaru v. Ford Motor Co. , 84 S.W.2d 198, 211 (Tex. 2002).
In September of 2001, Thomas filed another supporting affidavit for the first time making the necessary allegation, but supporting it with circumstances that were adverse but well within the trial court's discretion to conclude did not endanger the child's physical health or significantly impair the child's emotional development. Under these circumstances, we have no basis to conclude that the trial court's imposition of sanctions was an abuse of discretion. Accordingly, appellant's second issue is overruled, and the judgment of the trial court is affirmed.
Jacqueline's brief asks us to impose sanctions and attorney's fees on Thomas for filing a frivolous appeal, incorporating by reference a motion to be filed at a future date. Because no such motion has been filed, this request presents nothing for our review.