Opinion
No. 04-05-00062-CV
Delivered and Filed: November 23, 2005.
Appeal from the 166th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-04001, Honorable Pat Boone, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Shannon Ann Turner Trinidad appeals the trial court's judgment designating Alexander John Trinidad as joint managing conservator with the right to designate the primary residence of their children. On appeal, Shannon asserts that: (1) the trial court lacked jurisdiction to determine custody, visitation, and support; and (2) the trial court abused its discretion in designating Alexander as joint managing conservator with the right to designate the primary residence of the children. We affirm the judgment of the trial court.
Background
On June 21, 2001, Shannon obtained a child support order from the 45th Judicial District Court of Bexar County that ordered Alexander to provide child support for the parties' two eldest children, born out of wedlock, and awarded managing conservatorship to Shannon. At the time the support order was signed, the parties were not married. Alexander and Shannon married on September 8, 2001, and resided together until their separation in March 2004. During that time, their third child was born. On March 12, 2004, Alexander filed an original petition for divorce and application for temporary restraining order in the 166th Judicial District Court of Bexar County.
Shannon asserts that because a child support order was signed in 2001 by the 45th Judicial District Court, the 45th Judicial District Court has exclusive, continuing jurisdiction over matters affecting the parties' children; therefore, the trial court lacked jurisdiction to enter the divorce decree. Alexander contends that his marriage to Shannon terminated the 2001 support order; therefore, the 166th Judicial District Court had jurisdiction to consider the petition filed in 2004.
Discussion
In her first issue, Shannon argues that another district court first acquired dominant jurisdiction over the interests of the children by signing the child support order, and, as such, it retained jurisdiction to the exclusion of all other courts. As a general rule, the court that first acquires jurisdiction in a suit affecting the parent-child relationship retains jurisdiction to the exclusion of other courts. See Tex. Fam. Code Ann. § 155.001(a) (Vernon 2002); In re Garza, 981 S.W.2d 438, 440 (Tex.App.-San Antonio 1998, orig. proceeding). However, in some instances, exclusive, continuing jurisdiction can end. Texas Family Code section 154.006(b) states "unless a nonparent or agency has been appointed conservator of the child under Chapter 153, the order for current child support, and any provision relating to conservatorship, possession, or access, terminates on the marriage or remarriage of the obligor and obligee to each other." Tex. Fam. Code Ann. § 154.006(b) (Vernon 2002). Here, it is clear that when Shannon and Alexander married on September 8, 2001, the June 21, 2001 child support order naming Alexander as obligor and Shannon as obligee was no longer enforceable and thus terminated. Not only did the order for child support terminate, but the provision naming Shannon managing conservator of the parties' two eldest children also terminated.
In Bexar County, we note that any judge may be assigned to hear a case in which one court retains continuing exclusive jurisdiction because the assigned judge is deemed to be acting for the court that has continuing exclusive jurisdiction. See In re Garza, 981 S.W.2d at 440-42.
While we find no Texas case speaking directly on a court's continuing, exclusive jurisdiction where the parents of a child marry for the first time after a child support order is entered, the situation is similar to a remarriage of the parents after a divorce. Upon the remarriage of the parents, the order for child support and any provision relating to conservatorship terminates pursuant to section 154.006(b), just as the child support order entered by the 45th Judicial District Court in the instant case terminated upon the marriage of Shannon and Alexander. Tex. Fam. Code Ann. § 154.006(b) (Vernon 2002). In the context of a remarriage, section 155.004(a)(3) of the Texas Family Code provides that the court that entered the order dissolving the previous marriage loses its continuing, exclusive jurisdiction, and the suit for the dissolution of the subsequent marriage combined with a suit affecting the parent-child relationship is to be filed as if there had not been a prior court with continuing, exclusive jurisdiction over the child. Tex. Fam. Code Ann. § 155.004(a)(3) (Vernon 2002); see also Osteen v. Osteen, 999 S.W.2d 28, 29-30 (Tex.App.-Houston [14th Dist.] 1999, no pet.). Thus, the Family Code treats the termination of the order of child support and the termination of the provisions relating to conservatorship on remarriage pursuant to section 154.006(b) as ending the continuing, exclusive jurisdiction of the court in which the first divorce was obtained. We can find no logic for treating the remarriage after a divorce decree is entered differently from a marriage after a child support order is entered. Both the divorce decree and the child support order are terminated, and since no action or order is pending subject to modification, the continuing, exclusive jurisdiction of the court that entered the divorce decree or child support order ends. This ensures that the district court that handles the divorce acquires dominant jurisdiction. See Osteen, 999 S.W.2d at 29.
We find support for our position in section 6.407 of the Family Code. Section 6.407 provides for the mandatory transfer of a pending suit affecting the parent-child relationship to the court in which a subsequent suit for dissolution is filed. Tex. Fam. Code Ann. § 6.407 (Vernon 1998). In this case, if a suit had been pending in the 45th Judicial District Court, section 6.407 would have required its transfer to the 166th Judicial District Court, where Alexander filed the suit for dissolution. However, because the order entered by the 45th Judicial District Court terminated upon the marriage of the parties, no suit remained pending in the 45th Judicial District Court that was subject to such a transfer. The court's continuing, exclusive jurisdiction ended upon the termination of the prior order by the subsequent marriage. Accordingly, the 166th Judicial District Court properly exercised jurisdiction in the underlying divorce proceeding. Shannon's first issue is overruled.
Shannon complains in her second issue that the trial court abused its discretion in designating Alexander as joint managing conservator with the right to designate the primary residence of their children. In determining the issues of conservatorship, possession, and access, the primary consideration is always the best interest of the child. See Tex. Fam. Code Ann. § 153.002 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 293 (Tex. 2002). The trial court has broad discretion in determining the best interest of the child. See In the Interest of M.R., 975 S.W.2d 51, 53 (Tex.App.-San Antonio 1998, pet. denied); Villaseñor v. Villaseñor, 911 S.W.2d 411, 419 (Tex.App.-San Antonio 1995, no writ). An appellate court will not reverse the trial court's decision regarding custody absent a clear abuse of discretion. See In the Interest of M.R., 975 S.W.2d at 53; Villaseñor, 911 S.W.2d at 419. A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
The party complaining of abuse of discretion has the burden to bring forth a record showing such abuse. See Simon v. York Crane Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex 1987). Without a record, the appellate court must presume that the evidence before the trial judge was adequate to support the decision. Id. This court has not been presented with a complete record of the trial proceedings. The record consists of the clerk's record and the reporter's record of a temporary orders hearing held June 3, 2004. Absent a record of the divorce proceedings, we will presume that the trial court considered the best interest of the children. Shannon specifically complains that Alexander should not have been designated joint managing conservator with the right to designate the primary residence of their children because he pled guilty to an assault charge. The reporter's record from the June 3, 2004 hearing reflects that the trial court was aware of the assault charge and was able to consider it, along with the other testimony presented, in determining the best interest of the Trinidad children.
We also note that at the June 2004 hearing, Shannon admitted to being arrested for possession of marijuana on April 26, 2004.