Opinion by Justice Bridges

On Appeal from the 470th Judicial District Court Collin County, Texas
Trial Court Cause No. 470-55466-06

MEMORANDUM OPINION

Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Bridges

This appeal originates from a suit affecting the parent-child relationship in which appellant Father has repeatedly sought to modify or clarify child support. The issue raised on appeal is procedural in nature; therefore, we provide a procedural history as necessary rather than the underlying facts regarding the divorce or SAPCR, as they are not relevant for disposition of this appeal. TEX. R. APP. P. 47.1. In a single issue, Father challenges the February 15, 2016 order, which incorporates the October 9, 2013 sanctions order, because he alleges the trial court erred by issuing the sanctions order after dismissing the case for want of prosecution without first reinstating the case pursuant to Texas Rule of Civil Procedure 165a. We affirm.

Father and appellee Mother divorced in September 2008 and are the parents of two children. Father filed his first motion to modify child support on March 31, 2009. He filed an amended motion on September 10, 2010. The trial court signed an order on his amended motion on September 30, 2011.

Father later filed a "motion to modify order in suit affecting parent child relationship" on March 13, 2012. Mother filed a motion to compel discovery and for sanctions, which the trial court granted on August 15, 2013. The case was continued until September 10, 2013 but neither party appeared. The trial court dismissed the case for want of prosecution on September 10, 2013. The record indicates neither party knew the trial court dismissed for want of prosecution.

Subsequently, on October 4, 2013, Mother filed another motion for sanctions because Father failed to comply with the August 15, 2013 sanctions order by neither providing answers to discovery nor paying the ordered attorney's fees. Mother requested that Father's pleadings be stricken and that he be ordered to pay all attorney's fees previously ordered and in conjunction with the present motion as child support. On October 9, 2013, the trial court signed an order on Mother's motion for sanctions, which included language striking all pending motions and petitions, dismissing Father's case with prejudice, and ordering $4,038.22 as sanctions and child support. Father did not challenge this order.

On December 10, 2014, Father again challenged the child support ordered in the September 30, 2011 order by filing a motion for clarification of child support. Mother answered on January 12, 2015 and asserted res judicata based on the October 9, 2013 order.

The trial court held a hearing on Father's motion, which included arguments about the September 10, 2013 dismissal order and subsequent sanctions order. The trial court orally stated at the conclusion of the hearing that when "the second order was signed the Court still retained plenary power to modify, reform, correct its judgment. And my ruling is that the second order on motion for sanctions is a revised order of dismissal, not a new order." This oral pronouncement was later incorporated into the order signed February 15, 2016.

Father requested findings of fact and conclusions of law. The trial court made findings and conclusions regarding the "Court's order on Motion to Clarify Child Support Order, entered on February 15, 2016, clarifying the Order in Suit to Modify Parent-Child Relationship and Judgment for Support . . . entered on September 26, 2011." The trial court made the following conclusions of law regarding prior orders:

1. The Order on Motion for Sanctions entered on October 9, 2013 was entered during the Court's period of plenary power following dismissal of the cause for want of prosecution on September 10, 2013.

2. The Court had jurisdiction to enter the Order on Motion for Sanctions on October 9, 2013.

3. The Order on Motion for Sanctions entered on October 9, 2013 is a valid, enforceable order.

Father argues on appeal that the trial court erred by concluding that the October 9, 2013 order was a "revised dismissal order" because the case was never reinstated pursuant to Texas Rule of Civil Procedure 165a. Mother responds the trial court acted during its plenary power to modify the September 10, 2013 dismissal for want of prosecution, and "nothing in Texas jurisprudence requires that a dismissed case be reinstated before the dismissal order itself can be modified, corrected or reformed" under Texas Rule of Procedure 329b(d). We agree with Mother.

Absent the filing of certain motions not at issue in this case, a trial court's plenary power to act does not expire until thirty days after the court has signed a judgment. See TEX. R. CIV. P. 329b(d). Father does not dispute that the trial court signed the October 9, 2013 sanctions order during its plenary jurisdiction; rather, he argues the trial court did not have authority to sign the order without first reinstating the case.

To support his argument, Father relies on In re R.C.M., No. 2-09-080-CV, 2010 WL 1267759 (Tex. App.—Fort Worth Apr. 1, 2010, no pet.) (mem. op.). In that case, the trial court dismissed the case for want of prosecution and the mother filed a motion to reinstate. Id. at *2. She subsequently filed a motion for contempt against the father for failing to pay child support. Id. at *1. The trial court granted the contempt motion without ruling on the motion to reinstate. Id. at *2. The father appealed the contempt order. Id. at *1. The issue before the court was "whether the trial court had jurisdiction to enter an order . . . after it dismissed [mother's] motion for enforcement of child support for want of prosecution fifty days earlier and no written order of reinstatement was ever signed." Id. The court of appeals concluded the contempt order was void because the trial court never signed an order of reinstatement. Id. at *5. In reaching this conclusion, the court of appeals was unpersuaded by the mother's argument that the trial court had plenary power under rule 329b to vacate the dismissal order and that the trial court's order acted as a reinstatement order. Id. at *2. The court stated that to conclude that rule 329b "authorizes the trial court to reinstate a case by simply signing an order" would "eviscerate the mandates of Rule 165a," which requires specific procedures for reinstating a case. Id. at *4.

We do not find R.C.M. persuasive or controlling authority. Rather, we conclude Scott & White Memorial Hospital v. Schexnider, 940 S.W.2d 594 (Tex. 1996), which R.C.M. does not acknowledge or attempt to distinguish, controls our decision. In that case, the supreme court determined whether a trial court has power during its plenary jurisdiction to grant a motion for sanctions though the motion is not pending when a nonsuit is filed. Id. at 595. The supreme court concluded a trial court's power to decide a motion for sanctions pertaining to matters occurring before judgment is no different than its power to decide any other motion during its plenary jurisdiction. Id. at 596. It further stated the time during which the trial court has authority to impose sanctions is limited to when it retains plenary jurisdiction and is not limited by rule 162. Id. The trial court imposed sanctions while it retained plenary jurisdiction and nothing within rule 162 or any other supreme court decision deprived the trial court of this power. Id.

In reaching this conclusion, the supreme court also disagreed, in part, with Hjalmarson v. Langley, 840 S.W.2d 153 (Tex. App.—Waco 1992, orig. proceeding). In that case, the defendant moved for sanctions two weeks after the trial court signed an order granting the plaintiff's nonsuit. Id. at 154. Although the defendant filed the sanctions motion during the trial court's plenary jurisdiction, the trial court did not sign the order until after jurisdiction expired. Id. The court of appeals concluded the sanctions order was void because the trial court ruled on the sanctions without reinstating the case and because the trial court's plenary power had expired. Id. at 154-55. The supreme court stated the Hjalmarson court correctly concluded the trial court could not grant the sanctions motion after its plenary jurisdiction expired; however, "it incorrectly concluded that the trial court must reinstate the case before granting a Rule 13 motion filed after a nonsuit." Scott & White Mem'l Hosp., 940 S.W.2d at 596.

We do not believe a trial court granting a motion for sanctions during its plenary power after dismissing a case for want of jurisdiction warrants a different result than that pronounced by the Texas Supreme Court for sanctions entered during a trial court's plenary power subsequent to a nonsuit. See id. A trial court "need not reinstate a case" in order to exercise its sanctions powers. Id.

In reaching this conclusion, we are unpersuaded by Father's argument that such a conclusion rewrites rule 165a out of the rules of civil procedure. Rule 165a provides the procedures necessary to reinstate a case; however, unlike the mother in R.C.M., it is undisputed neither party here tried to reinstate the case. Therefore, the record here does not indicate the trial court was trying to bypass rule 165a by signing the sanctions order instead of ruling on a motion to reinstate. In fact, under these facts, forcing Mother to file a motion to reinstate a case she did not initiate so she could seek sanctions the trial court had already once ordered prior to dismissal would be a waste of judicial resources and involve further unnecessary attorneys' fees and costs.

Finally, Father appears to challenge the trial court's inclusion of language in the October 9, 2013 sanctions order that "DISMISSED with prejudice against refiling same" any pending motions and petitions. He argues a dismissal with prejudice is a "legal fiction" in family law cases and res judicata cannot apply.

We agree "the modification of the parent-child relationship is not inherently final." See Hargrave v. Lefever, 82 S.W.3d 524, 528 (Tex. App.—San Antonio 2002, no pet.). It is an ongoing process allowing parties to file motions any time they allege circumstances have substantially and materially changed. Id.; see also TEX. FAM. CODE ANN. § 156.401 (West Supp. 2016) & § 157.269 (noting court retains continuing jurisdiction to enforce child support orders). However, Father has not identified any specific subsequent action that the trial court has or will deprive him of, but rather seems to argue for some theoretical modification in the future to which he may be deprived. To the extent he is arguing some theoretical harm, we are prohibited from issuing an advisory opinion. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).

Moreover, the trial court made findings of fact and then concluded "Petitioner's claim for credits for any payments made on or before September 26, 2011 are barred by the doctrines of res judicata and collateral estoppel." Father has not challenged these findings or conclusions regarding child support or the application of res judicata. It is not this court's duty to review the record, research the law, and then fashion a legal argument on Father's behalf when he has failed to do so. See Graham v. Federated Dep't Stores, Inc., No. 05-09-01310-CV, 2011 WL 3435371, at *2 (Tex. App.—Dallas Aug. 8, 2011, no pet.) (mem. op.) (noting that to do so would require court to "stray from our role as neutral adjudicator and become an advocate for that party"). Father's sole issue is overruled.

We affirm the trial court's order.

/David L. Bridges/

DAVID L. BRIDGES

JUSTICE 160574F.P05

JUDGMENT

On Appeal from the 470th Judicial District Court, Collin County, Texas
Trial Court Cause No. 470-55466-06.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Evans participating.

In accordance with this Court's opinion of this date, the order of the trial court is AFFIRMED.

It is ORDERED that appellee Cloe McQuerry recover her costs of this appeal from appellant Jason Lee Rutberg. Judgment entered July 7, 2017.