Friday, September 4, 2009

Suit for Clarification of Prior SAPRC Order / Divorce Decree: Who has standing to bring suit to clarify the original order?

RIGHT TO SEEK CLARIFICATION OF PRIOR ORDER DEPENDS ON PARTY STATUS AND STANDING

The Family Code allows a party to seek clarification of an order in prior suit affecting the parent-child relationship (SAPCR) when lack of clarity has become an issue and enforcement is impossible. But who is a party? In a recent case, the grandparents were not involved in the parent's original divorce action (as intervenors), but acquired access to the child in a subsequent SAPCR modification proceeding. The Dallas Court of Appeals found that the grandparents did not qualify as "parties" and thus had no standing to seek clarification of the divorce decree provision governing payment of college tuition.

From the opinion:

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.

SOURCE: Appellate opinion in 05-07-01712-CV (decided 2/6/09) (Dallas Court of Appeals vacates the trial court's order on the motion for clarification of obligation to pay for college to the extent the order pertains to the grandparents' requests for clarification, and dismisses all claims brought by grandparents)

Standing based on statute vs. standing as a common-law doctrine

Standing is a general principle of law governing who may bring and maintain a lawsuit. As a general rule, it is rooted in the state's common law as reflected in appellate judicial decisions (case law precedents); but it can also be defined by statute, as is true in the case of child custody proceedings. Where the statute applies, the statutory standing requirements will be followed.

STANDING DEFINED:

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.

SOURCE: Appellate opinion by the Dallas Court of Appeals in 05-07-01712-CV (grandparents lacked standing to bring suit for clarification of divorce decree provision governing college expenses) ("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.")

"Actual care, control, and possession" of the child as basis for non-parent's standing in SAPCR suit

A recent opinion from the Dallas Court of Appeals explains the concept of standing as a general legal principle, and standing for purposes of a child custody procedings in particular. In Texas, standing of grandparents and non-parents is defined by statute (Texas Family Code), and can be based on the child having lived with the petitioner. The magic language is "actual care control and possession" of the child. To get a better idea of what that means, one has to look at appellate opinions (case law). Below is an excerpt of a recent opinion of the Dallas Court of Appeals involving standing issues. Note that it points out that the standing rules can't be applied mechanically and that the application of the standing criteria depends on the specific facts in a particular case. That means that the trial court will have greater discretion than would otherwise be the case, and that the court's ruling will not be predictible. It also means that that the issue may not be easily resolved on appeal either. Different courts and judges may reach different conclusions as to whether the statutory standing requirements were met in a particular situation:

A person seeking conservatorship of a child must have standing to bring suit. See In re S.S.J.-J., 153 S.W.3d 132, 134 (Tex. App.-San Antonio 2004, no pet.). A component of subject matter jurisdiction-which is a court's power to hear a case, standing is a constitutional prerequisite to maintaining a lawsuit under Texas law and focuses on who is entitled to bring an action. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993); In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.-Dallas 2008, no pet.).

Standing exists by operation of law and cannot be conferred by waiver or estoppel. In re H.G., 267 S.W.3d 120, 124 (Tex. App.-San Antonio 2008, pet. denied) (op. on reh'g). Subject to two exceptions in the context of suits affecting the parent- child relationship (SAPCR), standing also cannot be conferred by consent. See Footnote 4 In re K.K.C., No. 09-09- 00131-CV, 2009 WL 2045331, *1 n.1 (Tex. App.-Beaumont July 16, 2009, no pet. h.); H.G., 267 S.W.3d at 124.

In Texas, standing in the context of SAPCRs is governed by the family code, and a party seeking relief in such suits must plead and establish standing within the parameters of the language used in the code. See H.G., 267 S.W.3d at 124; see also Tex. Fam. Code Ann. §§ 102.003-.007.

If a party fails to do so, the trial court must dismiss the suit. See In re C.M.C, 192 S.W.3d 866, 870 (Tex. App.-Texarkana 2006, no pet.). We review de novo a trial court's dismissal based on lack of standing. See Coons-Andersen v. Andersen, 104 S.W.3d 630, 633-34 (Tex. App.-Dallas 2003, no pet.); Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex. App.-El Paso 2002, no pet.). Section 102.003(a)(9)

To establish “actual care, control, and possession” as required by section 102.003(a)(9), the section under which K.V. asserts standing, the party must demonstrate (i) more than temporary or occasional possession, though it need not be exclusive, and (ii) more than the control “implicit in having care and possession of the child.” See K.K.C., 2009 WL 2045331, *3 (control); In re M.J.G., 248 S.W.3d 753, 758-59 (Tex. App.-Fort Worth 2008, no pet.) (control); Coons-Andersen, 104 S.W.3d at 634 (possession or access).

To establish the six-month requirement of “actual care, control, and possession of the child” as required by section 102.003(a)(9), the party must demonstrate the child “principally resided” with him, though the residency of the child with the party need not be continuous and uninterrupted. See Tex. Fam. Code Ann. § 102.003(b); M.P.B., 257 S.W.3d at 808; Doncer, 81 S.W.3d at 362.

Visitation in accordance with the Standard Possession Order found in section 153.312 of the family code may satisfy the standing requirement. See Doncer, 81 S.W.3d at 362. Whether a party satisfies the standing requirement under section 102.003(a)(9) is necessarily fact specific and determined on a case-by-case basis. M.P.B., 257 S.W.2d at 809.

SOURCE: Dallas Court of Appeals opinion in 05-08-00568-CV (8/8/09)

What is "standing" and "lack of standing"?

Quick answer: Something serious that may nix a pending or contemplated lawsuit without regard to the merits because the plaintiff (or the petitioner or intervenor in a child custody proceeding) did not have the right to bring the action or get involved in a pending proceeding.

In laymen's terms "standing" means that you can't get the judge to play umpire if you don't have a dog in the fight. Stated differently, you must have a real complaint against someone that a court can do something about under the law. Of course, such a general definition won't do for legal purposes. Nor is it enough for standing purposes to simply assert a claim or complaint. The right to make that claim must be recognized under the law.

Here is how the Dallas Court of Appeals defined standing as a general principle. (Note that standing for grandparents and non-parents in suits affecting the parent-child relationship is governed by the Texas Family Code, i.e. by statute, rather than by general standing principles found in case law):

Standing is a party's justiciable interest in a controversy. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661-62 (Tex. 1996); Town of Fairview v. Lawler, 252 S.W.3d 853, 855 (Tex. App-Dallas 2008, no pet.). Without a breach of a legal right belonging to a plaintiff, that plaintiff has no standing to litigate. Cadle Co. v. Lobingier, 50 S.W.3d 662, 669-70 (Tex. App.-Fort Worth 2001, pet. denied). Only the person whose primary legal right has been breached may seek redress for an injury. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex. App.-Dallas 2005, no pet.). In reviewing standing on appeal, we construe the petition in favor of the plaintiff, and if necessary, review the entire record to determine if any evidence supports standing. See Tex. Air Control Bd., 852 S.W.2d at 446.

Lack of standing is a fundamental issue that is difficult, if not impossible, to fix. It can provide a basis for an order being thrown out on appeal if the trial court entered it in favor of a party who did not satisfy the standing requirement. Standing is treated as jurisdictional. When there is no jurisdiction, the hands of the judge are tied. All the court can do under such circumstances is dismiss the lawsuit, or the appeal, whichever applies, or to dismiss the party without standing (in a suit with multiple other parties). As put by the Dallas court, with citations to caselaw:

Standing, a necessary component of subject matter jurisdiction, is a constitutional prerequisite to maintaining a suit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993). A standing defect cannot be waived and can be raised for the first time on appeal. Id. at 445-46. A party's standing to pursue a claim is a question of law that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

SOURCE: Opinion of the Dallas Court of Appeals in 05-08-00038-CV