Opinion
No. 01-04-00043-CV
Opinion issued November 18, 2004.
On Appeal from the 246th District Court, Harris County, Texas, Trial Court Cause No. 2003-14309.
Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
MEMORANDUM OPINION
This is an appeal of the trial court's order denyng the relief requested by appellants, Peter Shelby Evans and his life partner, Kenneth Rhydell McMillan, in a suit affecting the parent-child relationship. In their sole issue, Evans and McMillan contend that the trial court abused its discretion in denying relief. We vacate the order and dismiss the cause.
BACKGROUND
After the death of their mother, Penny Evans, K.D.E. and B.S.E. came to live with their father, Evans, and his life partner, McMillan. Approximately three months later, Evans and McMillan filed a petition in a suit affecting the parent-child relationship (SAPCR) in which they asked to be appointed joint managing conservators of the children. Evans and McMillan presented an agreed order naming themselves as joint managing conservators and granting each of them, equally, many of the rights and duties of parents as found in the Family Code. See Tex. Fam. Code Ann. §§ 153.073, 153.074, 153.076, 153.132, 153.133 (Vernon 2002 Supp. 2004-2005). They each are granted the rights of parents at all times (section 153.073), the rights and duties during periods of possession (section 153.074), the duty to provide information (section 153.076), and the rights and duties of parents appointed sole managing conservators (section 153.132). The agreed order grants both managing conservators "the right to establish the primary residence of the children without regard to geographic location when the children are in their possession." The order further provides that the conservators will have equal access to the children at all times and that there will be no provisions for possession and access or child support because the parties are cohabitants and are both responsible for the children's support.
At a hearing before the associate judge of the court, Evans testified that the children had lived with him and McMillan since their mother's death, that he and McMillan shared in the responsibility for the children and jointly provided for their support, and that he and McMillan could share in the plans and the decision-making process for the children. Evans also testified that the children had expressed their love and affection for McMillan. He asked the court to approve the joint order and said that he believed that the order was in the best interests of the children.
McMillan testified that he and Evans had been together for 10 years, that he had shared in the responsibility for the children, that he and Evans had made joint decisions with regard to the children's education and health, and that he and Evans had a "shared vision" for the children's well-being. He stated that he had provided some actual support for the children and was asking the court to appoint him as a joint managing conservator of the children.
The court denied the requested relief in an order signed on December 15, 2003. In its findings of fact and conclusions of law, the trial court found that "[n]o evidence, or insufficient evidence was presented demonstrating a justiciable controversy, per In re T.D.C., 91 S.W.3d 865, 870 (Tex.App.-Fort Worth 2002, pet. denied), and Troxel v. Granville, 530 U.S. 57, 68, 120 S. Ct. 2054, 2061 (2000)" and concluded that there was "no controversy subject to judicial resolution."
The trial court also made findings of fact that included the following:
• No evidence or insufficient evidence was presented upon which the court could grant any periods of possession and access, as the presumption of a standard possession order was not properly rebutted.
• No evidence or insufficient evidence was presented upon which the court could allocate the rights, powers, and duties of the joint managing conservators, including the right to designate the residence of the children, per Texas Family Code § 153.193 [sic].
• No evidence or insufficient evidence was presented from which the court could assess child support, although the presumption of minimum wage was rebutted.
• The parenting decisions of the sole surviving parent have not been harmful to the children.
• The relief requested was not in the best interest of the children.
• The evidence was insufficient to support any judgment other than a take nothing judgment.
The trial court's conclusions of law included the following:
• The sole surviving parent is not unfit.
• There is no request for declarative relief.
• There is no right of a non-parent to be named a conservator.
• There is no statutory presumption in favor of the relief requested.
• The written agreement for the joint managing conservatorship filed in this case did not comply with the requirements of Tex. Fam. Code § 153.133.
• The relief requested by the parties to this suit is not in the best interest of the children.
Evans and McMillan appealed the trial court's order denying their motion to be named joint managing conservators. There is no appellee in this appeal.
DISCUSSION
A justiciable controversy between the parties must exist at every stage of the legal proceedings. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). A justiciable controversy is one that is definite and concrete and impacts the legal relations of parties having adverse legal interests. City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 371 (Tex.App.-Fort Worth 2001, no pet.). When there is no justiciable controversy, the trial court does not have subject matter jurisdiction over the action presented. See Paulsen v. Tex. Equal Access to Justice Found., 23 S.W.3d 42, 48 (Tex.App.-Austin 1999, pet. denied) (holding that there was no justiciable controversy and thus, no subject matter jurisdiction).
Appellants did not challenge the trial court's finding that there was no evidence demonstrating a justiciable controversy and the court's conclusion that there was no controversy subject to judicial resolution. The appellants' petition and proposed agreed order clearly show that Evans and McMillan did not have adverse legal interests. Therefore, there was no justiciable controversy in this case, and the trial court did not have subject matter jurisdiction over the action filed.
Accordingly, we vacate the order of the trial court and dismiss the cause of action. See Tex.R.App.P. 43.2(e).