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affirming judgment as to appellant who did not file brief
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No. 05-07-01712-CV
Opinion Filed February 6, 2009.
On Appeal from the 330th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 90-06851-Y.
Before Justices BRIDGES, RICHTER, and MAZZANT.
Opinion By Justice MAZZANT.
MEMORANDUM OPINION
In this family law matter, an agreed divorce decree required the father of three minor children to pay for their college educations under certain circumstances. Later, the children's maternal grandparents were appointed as joint managing conservators. Still later, the children's mother and maternal grandparents filed a motion to clarify the college-tuition provision of the divorce decree. The trial court denied the motion for clarification, and this appeal followed.
I. Background
Father and Mother divorced in September 1990. They had three daughters, L.N.E., L.M.E., and L.M.E. At the time of the divorce, all three children were under the age of five. The agreed divorce decree signed by both Mother and Father contains the following provision:
In the event that a child of the marriage enrolls in a college, university, junior college, or vocational or business school within two years after the completion of her high school education, IT IS ORDERED AND DECREED that [Father] shall be responsible for and shall pay all costs of tuition, room and board, and books for said child. IT IS ORDERED that this obligation to pay shall continue for each semester in which the child is enrolled for at least 12 hours of semester credit towards the completion of an associate's or bachelor's degree, or similar degree of a vocational school, but in no event shall this obligation continue for more than four calendar years from the date the child first enrolls in the institution of higher learning.
The decree appointed Father and Mother joint managing conservators.
In 2003, the trial judge signed an agreed order that modified the divorce decree by appointing Father, Mother, and the children's maternal grandparents ("Grandparents") as joint managing conservators of the children and by giving Grandparents primary custody of the children. Father, Mother, and Grandparents all signed this order. The motion to modify that prompted this order is not in our record, but the order recites that Grandparents were the movants.
In 2007, Grandfather filed a motion for clarification of the college-tuition provision of the divorce decree quoted above, alleging concern that it was not specific enough to be enforceable by contempt. In his answer, Father pointed out that Grandfather was not a party to the divorce decree containing the provision at issue. Grandparents and Mother then joined in an amended motion and a second amended motion for clarification seeking the same relief. Grandparents appeared by counsel, while Mother appeared pro se.
The trial judge conducted a nonevidentiary hearing and later signed an order denying the motion for clarification. The judge later signed findings of fact and conclusions of law in which she concluded that the college-tuition provision of the divorce decree is contractual and not in the nature of child support, that the provision is ambiguous and not capable of being enforced by contempt, and that she lacked the authority to clarify the order. This appeal followed.
An order denying clarification under section 157.421 is an appealable order. See Lee v. Lee, No. 08-05-00181-CV, 2007 WL 178940 (Tex.App.-El Paso Jan. 25, 2007, no pet. h.) (reviewing order granting clarification under section 157.421); see also Karigan v. Karigan, 239 S.W.3d 436 (Tex.App.-Dallas 2007, no pet.) (reviewing order granting clarification of property division).
II. Standing
In his appellee's brief, Father argues that Grandparents lack standing and that Mother, who does have standing, has failed to perfect or prosecute the appeal. Grandparents have filed no reply brief or other response to Father's standing challenge.
Standing is a component of subject-matter jurisdiction. City of Heath v. Duncan, 152 S.W.3d 147, 150 (Tex.App.-Dallas 2004, pet. denied). As such, it cannot be waived and can be raised for the first time on appeal. Mazon Assocs., Inc. v. Comerica Bank, 195 S.W.3d 800, 803 (Tex.App.-Dallas 2006, no pet.). When we consider the issue of standing for the first time on appeal, we construe the petition in favor of the plaintiff and, if necessary, review the entire record to determine whether any evidence supports standing. Id. At common law, "[t]he issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a justiciable interest in the outcome." Henderson Edwards Wilson, L.L.P. v. Toledo, 244 S.W.3d 851, 853 (Tex.App.-Dallas 2008, no pet.). Alternatively, a statute may confer standing on a plaintiff, in which case the statute itself provides the framework for the standing analysis. Mazon Assocs., Inc., 195 S.W.3d at 803.
With respect to statutory standing, the family code provides that "[a] court may clarify an order rendered by the court in a [suit affecting the parent-child relationship] if the court finds, on the motion of a party or on the court's own motion, that the order is not specific enough to be enforced by contempt." Tex. Fam. Code Ann. § 157.421(a) (Vernon 2008). Thus, it appears that only "a party" has standing to request clarification of an order in a suit affecting the parent-child relationship. So the question becomes whether Grandparents were "parties" within the meaning of section 157.421(a).
In construing a statute, we start with the plain and ordinary meaning of its words. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). If its meaning is unambiguous, we generally enforce it according to its plain meaning. Id. Regardless of whether a statute is ambiguous, we may consider certain extrinsic matters in interpreting it, such as the object the legislature sought to attain, the common law or former statutory provisions, and the consequences of a particular construction. PACCAR Fin. Corp. v. Potter, 239 S.W.3d 879, 882 (Tex.App.-Dallas 2007, no pet.).
"Party" has two ordinary meanings in the legal context: (1) a participant in a transaction, such as a party to a contract, or (2) one by or against whom a lawsuit is brought. Black's Law Dictionary 1154 (8th ed. 2004); accord Doe v. Roe, 600 S.W.2d 378, 379 (Tex.Civ.App.-Eastland 1980, writ ref'd n.r.e.) ("Texas courts have long held that a `party' is one by or against whom a suit is brought while all others who may be incidentally or consequently affected [are] `persons interested' but not parties."). We give the word "party" as used in section 157.421(a) its ordinary meaning and conclude that Grandparents do not qualify as "parties" under either definition of the word. First, they were not parties to the agreed divorce decree that they seek to have clarified. Second, nothing in our record indicates that they were parties to the litigation at the time the agreed divorce decree was signed by the trial court. It appears that they became parties only when they filed a "motion to modify in suit affecting the parent-child relationship," which constituted a new cause of action and proceeding under the family code. See generally Tex. Fam. Code Ann. § 156.003 (requiring service of citation on all parties whose rights and duties may be affected by a suit for modification); id. § 156.004 ("The Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification under this chapter."); Bilyeu v. Bilyeu, 86 S.W.3d 278, 280 (Tex.App.-Austin 2002, no pet.) ("Under the Family Code's statutory scheme, the legislature designated a suit to modify a SAPCR as a new cause of action. . . . [T]he original decree remains final and a new final order results from the modification proceeding.").
We conclude that section 157.421 confers standing to seek clarification only on persons that are parties to the order that is to be clarified or parties to the proceeding in which that order was signed. Grandparents do not allege that they satisfy either criterion, nor does anything in the record show that they satisfy them. Thus, we conclude that they did not have standing to seek clarification. We vacate the trial court's order insofar as it rules on their requests for clarification and dismiss this action as to them.
III. Mother's Appeal
Father next contends that Mother did not file a notice of appeal, but we cannot agree with this proposition. Admittedly, the notice of appeal is not entirely consistent. The first line recites, "This Notice of Appeal is filed by [Grandfather], Petitioner, a party to this proceeding who seeks to alter the trial court's judgment or other appealable order." And the notice is signed by the attorney who represented Grandparents in the trial court only as "Attorney for Petitioner." But the notice also recites in its final paragraph, "This notice is being filed jointly by the following parties whose interests are aligned: [Grandfather], [Grandmother] and [Mother]." This is sufficient to satisfy Texas Rule of Appellate Procedure 25.1(c), which recites that "[p]arties whose interests are aligned may file a joint notice of appeal" and rule 25.1(d)(5), which requires the notice to "state the name of each party filing the notice."
Father is correct, however, that Mother has not filed an appellant's brief. On the cover of Grandparents' appellants' brief, their attorney represents that he is counsel for Grandparents, without mentioning Mother. The list of parties and counsel required by rule 38.1(a) lists Mother as an appellant, but the attorney filing the brief shows himself as representing only Grandparents. The first line of the substance of the brief recites that Grandfather and Grandmother "submit this Appellants' Amended Brief." Under the attorney's signature block, he again states that he is attorney for Grandfather and Grandmother, and the certificate of service at the end of the brief reflects service on Mother as though she were pro se. The brief cannot be reasonably construed to have been filed by or on behalf of Mother.
The rules provide that, if an appellant fails to timely file a brief and an appellee does file a brief, "the court may regard [appellee's] brief as correctly presenting the case and may affirm the trial court's judgment upon that brief without examining the record." Tex. R. App. P. 38.8(a)(3); see also Wood v. Morrison, No. 09-04-247-CV, 2005 WL 387680 (Tex.App.-Beaumont Feb. 17, 2005, no pet.) (mem. op.) (affirming judgment based on rule 38.8(a)(3)). Moreover, we cannot reverse the trial court's order on a ground not raised by appellant on appeal. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam). Accordingly, we affirm the trial court's order with respect to Mother's request for clarification.
IV. Conclusion
We vacate the trial court's order on the motion for clarification of obligation to pay for college to the extent the order pertains to Grandparents' requests for clarification, and we dismiss all claims brought by Grandparents. In all other respects, we affirm the trial court's order.