Opinion
No. 01-03-01169-CV
Opinion issued August 31, 2005.
On Appeal from the 309th District Court, Harris County, Texas, Trial Court Cause No. 1988-09951.
Panel consists of Justices TAFT, ALCALA, and HIGLEY.
MEMORANDUM OPINION
Appellant, Alberto Jiminez, appeals the trial court's "Order Confirming Child Support Arrearage." In two issues, Jimenez contends that the trial court had no authority to enter its order confirming child support arrearage because the trial court did not sign the decree of divorce, on which the arrearage order was based, until 13 years after Jimenez and his former wife signed their "Agreed Decree of Divorce and Paternity Judgment." We affirm.
Background
Appellee, Isabel Perez, sued Jimenez for divorce on February 26, 1988. She alleged that Jimenez was the biological father of two children born during the marriage. Between January 16, 1990 and April 27, 1990, both parties and their counsel signed an "Agreed Decree of Divorce and Paternity Judgment." The agreed decree recites that the cause had been heard on January 16, 1990 and that a decree of divorce had been rendered between the two parties. The agreed decree further recites that Jimenez was the father of both children born during the marriage and required Jimenez to pay $225 in child support beginning January 20, 1990. Although the trial judge at the time did not sign the agreed decree, the judge did sign an "Employer's Order to Withhold from Earnings for Child Support," in accordance with the agreed decree, which authorized Jimenez's current employer and any subsequent employers to withhold $225 per month from Jimnez's earnings.
Now Isabel Campoverde.
On May 8, 2002, 13 years after the parties and their counsel signed the agreed decree, the Office of the Attorney General filed a "Motion for Enforcement of Child Support Order," alleging that Jimenez had not paid his child support obligations and seeking to enforce them. Upon discovering that the agreed divorce decree had never been signed by the trial judge who had presided over the 1990 divorce, the current presiding trial judge signed the decree on May 20, 2003. The trial court heard the Attorney General's motion for enforcement on August 1, 2003, and, on August 8, 2003, signed an "Order Confirming Child Support Arrearage," and rendered an arrearage judgment of $41,060.47 against Jimenez.
Jimenez filed a motion for new trial in which he contended that the trial court's order was "improper," and that the trial court had no jurisdiction to sign the divorce decree or to order Jimenez to pay child support retroactively on a decree and order that were neither properly rendered nor signed. After a hearing, the trial court denied Jimenez's motion for new trial.
Discussion
In two issues, Jimenez contends that the trial court had no authority to enter its order confirming child support arrearage because the order was based on a decree of divorce that was neither rendered nor signed by the trial court. Appellant further contends that, because the decree was not signed until May 20, 2003, the trial court granted relief on a judgment that was not final. We address these issues together.
A judgment is void only when it is clear that the court rendering the judgment had no jurisdiction over the parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a court. State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995).
The court in which suit is first filed acquires dominant jurisdiction over the controversey to the exclusion of coordinate courts. Bailey v. Cherokee County Appraisal Dist., 862 S.W.2d 581, 586 (Tex. 1993); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974); V.D. Anderson Co. v. Young, 101 S.W.2d 798, 800 (Tex. 1937); Cleveland v. Ward, 285 S.W. 1063, 1070 (Tex. 1926). Moreover, in a divorce action that includes a SAPCR (suit affecting the parent-child relationship), the trial court acquires and retains continuing, exclusive jurisdiction over matters related to the suit even after the court has rendered a final order. Tex. Fam. Code Ann. §§ 155.001, 155.002, 155.003 (Vernon 2002); Chalu v. Shamala, 125 S.W.3d 737, 738 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex.App.-Corpus Christi 2001, no pet.); see also Tex. Fam. Code Ann. § 101.032(a) (Vernon 2002) (defining "suit affecting the parent-child relationship"). In a SAPCR, the trial court in subsequent proceedings has jurisdiction to modify its order upon the filing of a proper motion. Tex. Fam. Code Ann. §§ 155.003, 156.001, 156.004 (Vernon 2002); Daniels, 45 S.W.3d at 282; see also Trader v. Dear, 565 S.W.2d 233, 235 (Tex. 1978) (stating, "[T]he court of continuing jurisdiction is the one that has the exclusive power to reexamine its prior order which evaluated the best interest of the child").
There are three exceptions to the Cleveland v. Ward rule, that the court where suit is first filed acquires dominant jurisdiction: (1) conduct by a party that estops him from asserting prior, active jurisdiction; (2) lack of persons to be joined if feasible, or the power to bring them before the court; and (3) lack of intent to prosecute the first lawsuit. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). None of these exceptions applies in this case.
The Family Code states the following:
Acquiring Continuing, Exclusive Jurisdiction
(a) Except as otherwise provided by this section, a court acquires continuing, exclusive jurisdiction over the matters provided for by this title in connection with a child on the rendition of a final order.
Tex. Fam. Code Ann. § 155.001(a) (Vernon 2002).
Retaining Continuing, Exclusive Jurisdiction
Except as otherwise provided by this subchapter, a court with continuing, exclusive jurisdiction retains jurisdiction of the parties and matters provided by this title.
Tex. Fam. Code Ann. § 155.002 (Vernon 2002).
Exercise of Continuing, Exclusive Jurisdiction
(a) Except as otherwise provided by this section, a court with continuing, exclusive jurisdiction may exercise its jurisdiction to modify its order regarding managing conservatorship, possessory conservatorship, possession of and access to the child, and support of the child.
Tex. Fam. Code Ann. § 155.003(a) (Vernon 2002).
Rendition occurs when the trial court officially announces its decision (1) in open court in a manner that objectively reflects its intention to render or (2) by written memorandum filed with the clerk. S A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995). Because rendition did not occur previously, the official procedural step of rendition took place when the trial judge signed the decree and filed it with the clerk of the trial court on May 20, 2003. See Burns v. Bishop, 48 S.W.3d 459, 465 (Tex.App.-Houston [14th Dist.] 2001, no pet.).
Nothing in the record before us demonstrates that the trial court had no jurisdiction over the parties, no jurisdiction over the subject matter, no jurisdiction to render judgment, and no capacity to act as a court when it signed the divorce decree on May 20, 2003. Rather, the record shows that the trial court acquired dominant jurisdiction on February 26, 1988, e.g., Bailey, 862 S.W.2d at 586, which continued until May 20, 2003, when the trial court acquired continuing and exclusive jurisdiction pursuant to Family Code § 155.001(a).
It is undisputed that the record contains the original petition for divorce, which was filed with the trial court on February 26, 1988, thereby establishing dominant jurisdiction in the trial court. See Bailey, 862 S.W.2d at 586.
The undisputed record further shows that the Attorney General filed a proper motion for enforcement of child support order and thereby requested the trial court to exercise its dominant jurisdiction by entering an order regarding support of the child. See Tex. Fam. Code Ann. §§ 155.003, 156.001, 156.004; Daniels, 45 S.W.3d at 282. The record also contains a judgment, rendered in the form of a written decree of divorce, that was signed by the trial court and filed with the clerk of the court. See Burns, 48 S.W.3d at 465. Although the trial court signed the agreed decree of divorce 13 years after both parties signed it, the order confirming child support arrearage was properly entered subsequently and pursuant to the valid, rendered decree of divorce.
Appellant further contends that the divorce decree is of no effect because a docket entry notes that the matter had been "dismissed for want of prosecution" on October 22, 1992. A docket entry, however, does not constitute a written order. Smith v. McCorkle, 895 S.W.2d 692, 692 (Tex. 1995).
Conclusion
We conclude that the judgment in this case is not void. We affirm the judgment of the trial court.
Furthermore, the record shows that the parties entered into a valid Rule 11 agreement requiring Jimenez to pay to Perez child support at the rate of $225 per month with payments to begin on January 20, 1990. See Tex. R. Civ. P. 11.
A settlement agreement conforms with the requirements of Rule 11 if it is (1) in writing, (2) signed, and (3) filed with the court or entered in open court prior to a party seeking enforcement. Tex. R. Civ. P. 11; Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); Kennedy v. Hyde, 682 S.W.2d 525, 529 (Tex. 1984). An agreement may be filed with the court under the requirements of Rule 11 even if consent is later withdrawn. See Padilla, 907 S.W.2d at 461; see also id. (explaining that plaintiffs had confused the requirements for an agreed judgment with those for an enforceable settlement agreement and stating that "Although a court cannot render a valid agreed judgment absent consent at the time it is rendered, this does not preclude the court, after proper notice and hearing, from enforcing a settlement agreement complying with Rule 11 even though one side no longer consents to the settlement. The judgment in the latter case is not an agreed judgment, but rather is a judgment enforcing a binding contract."). Jimenez, however, did not contend at trial, nor does he contend on appeal, that he has withdrawn his consent to the agreed judgment. It is uncontested that the agreement was reduced to writing in the document titled "Agreed Decree of Divorce and Paternity Judgment," which was signed by both parties and their attorneys and filed with the court prior to the filing of the Attorney General's motion for enforcement of the child support order. Jimenez agreed to the terms of the agreement. The agreement between Jimenez and Perez meets the requirements of Rule 11. See Tex. R. Civ. P. 11. We note that the effect of the parties' agreement is that it is an enforceable Rule 11 agreement and that the agreement's terms are binding on the parties. See Padilla, 907 S.W.2d at 461; cf. Tindall v. Bishop, 961 S.W.2d 248, 251 (Tex.App.-Houston [1st Dist.] 1997, no pet.) (holding contract enforceable as oral agreement when it did not meet requirements of Rule 11).