Opinion
No. 05-02-02001-CV
Opinion Filed May 14, 2003
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-52704-99
Reversed, Remanded,
MEMORANDUM OPINION
Presenting six issues, Paul R. Lindgren (Father) appeals the trial court's order appointing him sole managing conservator of his children, but appointing Carla S. Lindgren (Mother) and Carl Lindgren (Grandfather) possessory conservators and granting physical custody of the children to Grandfather. Father also brings a petition for writ of mandamus, requesting this Court direct the trial court to vacate its order granting physical custody of the children to Grandfather. This Court consolidated the two cases. We deny the petition. Further, we reverse the trial court's judgment and remand this cause for further proceedings.
Final orders in a suit affecting the parent-child relationship (SAPCR) are appealable. See Tex. Fam. Code Ann. § 109.002 (Vernon 2002). The order at issue in this case is final because it contains the relevant language required for a final order in a SAPCR, there is no limit on the duration of the appointed conservatorships, there is no express provision for further hearing, it recites that subsequent clarifying orders do not affect its finality, and it states that all other relief not expressly granted is denied. See generally Tex. Fam. Code Ann. § 105.006 (Vernon 2002); Lehmann v. Har- Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001). Therefore, the order is appealable.
Because Father had direct appeal as a remedy, he is not entitled to mandamus relief. See Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989) (orig. proceeding). Accordingly, we deny appellant's petition for writ of mandamus. See Tex.R.App.P. 52.8(a); Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992) (orig. proceeding).
In her response to Father's petition for writ of mandamus, Mother sought sanctions against Father for grossly misstating or omitting an obviously important and material fact in the petition or for filing an appendix or record that was clearly misleading because of the omission of obviously important and material evidence or documents. See Tex.R.App.P. 52.11(c), (d). We conclude there is no evidence to support Mother's contentions. Accordingly, we deny Mother's request for sanctions. See, e.g. Roberts v. Rose, 37 S.W.3d 31, 35 (Tex.App.-San Antonio 2000, no pet.).
In his third issue, Father complains the trial court erred by summarily resolving his motion to modify without notice to him that his claims were set for trial. A party to a contested proceeding is entitled to notice of the final hearing at least forty-five days before the hearing. See Tex.R.Civ.P. 245; see also In re J.B., 93 S.W.3d 609, 614 (Tex.App.-Waco 2002, no pet.). Proceeding to trial without notice to a party is reversible error. Barnes v. Barnes, 775 S.W.2d 430, 431 (Tex.App.-Houston [1st Dist.] 1989, no pet.). Failure to give the requisite notice denies the affected party's right of due process. Id. Here, the record reflects the trial court, while hearing Mother's motion for temporary orders, actually entered a final order, implicitly overruling Father's motion to modify without notice to Father that his motion was to be heard and ruled on. Accordingly, we resolve this issue in Father's favor. See In re Brilliant, 86 S.W.3d 680, 693 (Tex.App.-El Paso 2002, no pet.). Having done so, we need not address his remaining issues. See Tex.R.App.P. 47.1.
Mother also filed a notice of appeal and, in her brief, contends the trial court erred by not appointing her sole managing conservator of the children. Based on our disposition of this cause, we need not address Mother's contentions. See Tex.R.App.P. 47.1.
We reverse the trial court's order of December 20, 2002, and remand the case to the trial court for further proceedings. We direct the Clerk of the Court to issue the mandate forthwith. SeeTex.R.App.P. 2. We will not entertain a motion for rehearing. Id.