Opinion
No. 01-02-00686-CV.
Opinion issued June 26, 2003.
Appeal from the 308th District Court, Harris County, Texas, Trial Court Cause No. 99-55868.
Panel consists of Justices TAFT, JENNINGS, and HANKS.
MEMORANDUM OPINION
In this restricted appeal following the trial court's rendition of a final decree of divorce between appellant, Darlene M. High, and appellee, Douglas W. High, Darlene challenges the trial court's order modifying the divorce decree and awarding primary custody of the couple's two minor children to Douglas.
In two points of error, Darlene contends that (1) the trial court lacked jurisdiction to modify the decree and (2) she was never served with a copy of Douglas's motion to modify the decree.
We affirm.
Facts and Procedural Background
On October 16, 2000, the trial court signed a final decree granting the parties a divorce, awarding primary custody of their two children, M.C.H. and D.J.H., to Darlene, and awarding standard periods of visitation to Douglas.
See Tex. Fam. Code Ann. §§ 153.311-.317 (Vernon 2002).
In April 2001, Douglas filed, in one pleading, a motion for enforcement of the trial court's decree and a motion to modify the decree, alleging that, in violation of the decree, Darlene had moved with the children to Louisiana without the consent of the trial court or Douglas. Douglas sought to modify the decree to appoint himself as primary conservator of the children.
See Tex. Fam. Code Ann. § 156.102 (Vernon 2002).
In May 2001, the trial court issued a notice ordering the parties to appear before it on June 7, 2001 for a hearing on Douglas's motion to enforce the decree. However, on September 20, 2001, the trial court dismissed the motion to enforce "for want of prosecution."
In January 2002, the trial court held a hearing on Douglas's motion to modify the decree. At the hearing, Darlene did not appear either personally or through counsel. The trial court announced that it was taking judicial notice of the citation and return of service "showing proper service" of the motion on Darlene by certified mail and by personal service effected by a constable on November 26, 2001. The trial court then considered testimony from Douglas in support of the allegations in his motion to modify.
We do not set forth the substance of Douglas's testimony here, as it is not relevant to our disposition of this case.
At the conclusion of the hearing, the trial court took the matter under advisement. On January 15, 2002, the trial court signed an order modifying the final decree of divorce, awarding primary custody of the parties' children to Douglas, and ordering Darlene to pay $300 per month as child support.
Jurisdiction
In her first point of error, Darlene argues that the trial court erred in considering Douglas's motion to modify the final divorce decree because, after Douglas's motion to enforce the decree was dismissed, the trial court lost jurisdiction over the case.
Darlene does not challenge the sufficiency of the evidence to support the trial court's decision to modify the decree.
Contrary to Darlene's assertion, the clerk's record indicates that, although filed in the trial court in one pleading, Douglas's motions to enforce and to modify the divorce decree were pleaded separately and were treated by the district clerk as two separate proceedings. The trial court's September 20, 2001 dismissal order specifically refers only to Douglas's motion to enforce the decree and does not refer to the motion to modify the decree. Thus, the trial court did not dismiss Douglas's motion to modify the parties' divorce decree by its September 20, 2001 dismissal order. Accordingly, we hold that, at the time the trial court considered Douglas's motion to modify the decree, the trial court had jurisdiction over the matter.
We overrule Darlene's first point of error.
Service of Motion
In her second point of error, Darlene argues that the record does not indicate that she was personally served with a copy of Douglas's motion to modify the divorce decree and that, as a result, "the trial court was without authority to sign the modification order because the service on [Darlene] was defective and therefore the trial court had no personal jurisdiction over her."
In support of her assertion that she was not personally served with a copy of the motion to modify the decree, Darlene relies on copies of the citation and constable's return of service attached as exhibits to her brief. She argues that, on their face, these documents at least raise a fact question concerning whether she was personally served with the motion to modify the decree.
However, neither the citation nor the return of service appear in the clerk's record of this case. We cannot consider documents attached to an appellate brief that do not appear in the record. Till v. Thomas , 10 S.W.3d 730, 733 (Tex.App.-Houston [1st Dist.] 1999, no pet.). This Court must hear and determine a case on the record as filed, and may not consider documents attached as exhibits to briefs. Id . Accordingly, we may not consider the documents attached to Darlene's brief.
Moreover, as noted above, the reporter's record of the hearing on Douglas's motion to modify the decree indicates that the trial court took judicial notice not only of the constable's return of service showing that the motion was personally served on Darlene, but also took judicial notice of a return receipt signed by Darlene showing that she received a copy of the motion by certified mail.
Accordingly, we hold that the record does not support Darlene's assertion that she was not properly served with a copy of the motion to modify the decree.
We overrule Darlene's second point of error.
Conclusion
We affirm the order of the trial court.