Opinion
No. 10-01-294-CV
Opinion delivered and filed January 14, 2004.
Appeal from the 87th District Court, Leon County, Texas, Trial Court # 6354-B.
Appeal dismissed.
Attorney(s) for Appellant: Joe Falco, Falco Falco, Navasota, TX.
Attorney(s) for Appellee: Kenneth H. Keeling, Attorney at Law, Huntsville, TX.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003. See TEX. R. APP. P. 41.1(c). Justice Reyna, who took the oath of office on January 5, 2004, participated in the decision of the Court.
MEMORANDUM OPINION
This is an appeal of the trial court's ruling on a plea of forum non conveniens. Paul Fowler filed a motion to modify the possession of K.J.F. and N.P.F., the children of Paul and Sheila Fowler from their former marriage. In response, Sheila filed a plea of forum non conveniens and other pleas, and prayed for attorney's fees. The trial court granted the plea of forum non conveniens and awarded her attorney's fees. Paul appeals, challenging the court's findings and the award of attorney's fees. We dismiss the appeal for want of jurisdiction.
FACTUAL BACKGROUND
The marriage of Paul and Sheila Fowler ended in divorce in Texas in 1996. The marriage had produced two children, K.J.F. and N.P.F. By the time the divorce became final, Sheila and the children resided in Mississippi. In the divorce decree, the trial court appointed Sheila managing conservator of the children and appointed Paul possessory conservator, and entered a standard possession order. See generally TEX. FAM. CODE ANN. §§ 153.311- 153.317 (Vernon 2002 Supp. 2004).
In 1999, Paul filed a motion to modify the possession order. The trial court granted Sheila's plea to the jurisdiction and dismissed Paul's motion. The court held that it no longer had exclusive continuing jurisdiction under former Texas Family Code Section 152.003(a)(1), since Mississippi had become the children's new home state. See Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, sec. 152.003(a)(1), 1995 Tex. Gen. Laws 113, 141, repealed, Act of Apr. 22, 1999, 76th Leg., R.S., ch. 34, § 1, 1999 Tex. Gen. Laws 52, 52.
In 2000, Paul filed another motion to modify and a motion to enforce the possession order by contempt. Sheila's response argued several theories, including a plea to the jurisdiction and a plea of forum non conveniens. The plea to the jurisdiction contended that the trial court's earlier determination that it lacked jurisdiction for a motion to modify continued to control. The plea of forum non conveniens contended that Texas was not a convenient forum and that Mississippi was a more convenient forum. See TEX. FAM. CODE ANN. § 152.207 (Vernon 2002).
At the hearing on the motions, Paul's counsel argued that the court's 1999 order was not dispositive, but that the court's exclusive continuing jurisdiction was determined by whether "substantial evidence is no longer available" in Texas "concerning the child's care, protection, training, and personal relationships." See TEX. FAM. CODE ANN. § 152.202(a)(1) (Vernon 2002). At the time of the hearing, the court reserved ruling on the plea to the jurisdiction, and ordered briefs on the issue of jurisdiction. The court heard evidence on the availability of substantial evidence in Texas, and on the plea of forum non conveniens.
The court's order recites as follows:
BE IT REMEMBERED that . . . the Court determined and concluded that substantial evidence is no longer available in the State of Texas concerning the children's care, protection, training and personal relationships as required by Section 152.202(a)(1) Texas Family Code. The Court has further determined that this Court is an inconvenient forum under the circumstances and that a Court in the State of Mississippi is a more appropriate forum.
IT IS THEREFORE ORDERED that the Plea to the Jurisdiction filed herein by Sheila Fowler is sustained on the above grounds.
IT IS FURTHER ORDERED that Sheila Fowler, Respondent, do have and recover . . . from Paul Fowler, Petitioner, . . . attorney's fees, with interest at legal rate from date of Judgment.
All relief not granted herein is denied.
LEGAL BACKGROUND
With few exceptions, "an appeal may be taken only from a final judgment" or an interlocutory order made appealable by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 194 (Tex. 2001). Generally, a judgment is "final for purposes of appeal if it disposes of all pending parties and claims in the record." Id. The courts of appeals have jurisdiction over only final judgments or appealable orders. Tullos v. Eaton Corp., 695 S.W.2d 568, 568 (Tex. 1985) (per curiam). The inclusion in a judgment of "Mother Hubbard" language, such as "[a]ll relief not granted herein is hereby denied," without a full trial, "cannot be taken as an indication of finality." Nash v. Harris County, 63 S.W.3d 415, 416 (Tex. 2001) (per curiam).
A plea of forum non conveniens "is utilized to urge that there is a convenient forum outside of Texas and seeks the abatement or dismissal of the Texas proceeding." 2 ELAINE A. GRAFTON CARLSON, TEXAS CIVIL PRACTICE § 6:33 (2d ed. 2003); see, e.g., Tex. Civ. Prac. Rem. Code Ann. § 71.051 (Vernon Supp. 2004) (personal injury and wrongful death actions); TEX. FAM. CODE ANN. § 152.207 (child custody proceedings).
A ruling on a plea of forum non conveniens is not an appealable order. Martinez v. Bell Helicopter Textron, Inc., 49 S.W.3d 890, 891 (Tex. App.-Fort Worth 2001, pet. denied); Gen. Box Co. v. S.W. Subsidiary Co., 598 S.W.2d 662, 663 (Tex. Civ. App.-Houston [14th Dist.] 1980, no writ); see In re W. Aircraft, 2 S.W.3d 382, 383 (Tex. App.-San Antonio 1999, orig. proceeding, mand denied).
Only a court that has jurisdiction in a child custody proceeding may grant a plea of forum non conveniens. TEX. FAM. CODE ANN. § 152.207(a); see In re Oates, 104 S.W.3d 571, 578 (Tex. App.-El Paso 2003, orig. proceeding).
ANALYSIS
We lack jurisdiction over this appeal. The trial court's order is interlocutory. We understand the order to grant Sheila's plea of forum non conveniens, and to stay the proceedings "upon condition that a child custody proceeding be promptly commenced" in Mississippi. See TEX. FAM. CODE ANN. § 152.207(c). The order does not rule on Paul's motions.
In reciting that it grants Sheila's plea to the jurisdiction, the trial court speaks loosely. Strictly speaking, Sheila's plea to the jurisdiction concerned the issue of whether the trial court's 1999 order, which found that the court no longer had exclusive continuing jurisdiction to modify its possession order, was dispositive of Paul's 2000 motion to modify. If the trial court had lacked jurisdiction, then it would have lacked jurisdiction over a plea of forum non conveniens. Conversely, in finding that Texas is an inconvenient forum, the trial court necessarily overruled Sheila's plea to the jurisdiction, and sustained her plea of forum non conveniens. That ruling on the plea of forum non conveniens is interlocutory.
Nor is that portion of the trial court's order that awards attorney's fees a final judgment. The trial court has stayed, but has not ruled on, the proceedings on Paul's motions. It may be that the trial court has found the amount of Sheila's attorney's fees up to this point in the proceedings, but the recitation of the amount in the order is not a final judgment for fees.
CONCLUSION
There being no final judgment or appealable order, we dismiss the appeal for want of jurisdiction.
DISSENTING OPINION
The majority has misunderstood the trial court's Order, resulting in an improper dismissal of the appeal. Therefore, I dissent.
In the same Texas court that issued the divorce decree, Paul Fowler filed a motion to modify possession to be appointed sole managing conservator and a motion for contempt due to violations of the possession order in the decree. Respondent in the motions was his former wife, Sheila, who after the divorce had moved with their children to Mississippi. Sheila responded by filing a special appearance and, under applicable provisions of the UCCJEA, a plea to the jurisdiction and a plea of forum non conveniens. TEX. FAM. CODE ANN. §§ 152.202(a)(1), 152.207 (Vernon 2002). On July 20, 2001, the trial court issued a one-page Order granting the plea to the jurisdiction.
The Order specifically says "the Plea to the Jurisdiction filed herein by Sheila Fowler is sustained on the above grounds." The court stated in the Order that it had "determined and concluded that substantial evidence is no longer available in the State of Texas concerning the children's care, protection, training and personal relationships as required by Section 152.202(a)(1) Texas Family Code." Thus, by its Order the court dismissed the suit under the UCCJEA for want of jurisdiction. Id. § 152.202(a)(1). The Order also awarded attorney's fees, completing all pending matters. In the Order, the trial court also found that it "is an inconvenient forum under the circumstances and that a Court in the State of Mississippi is a more appropriate forum." The court did not, however, refer to the plea for forum non conveniens in the decretal portion of the Order, which refers only to the plea to the jurisdiction.
A dismissal for want of jurisdiction is a final, appealable order, because the entire cause is dismissed, and thus all claims of all parties are disposed of. See Lehman v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Lucas v. Burleson Publ. Co., 39 S.W.3d 693, 695 (Tex. App.-Waco 2001, no pet.). In addition, this Order contains a Mother Hubbard clause. Although, absent a trial on the merits, inclusion of the clause does not necessarily indicate that the court intended the order to be final, in the context of a dismissal for want of jurisdiction, which disposes of all claims and parties, the clause shows the court's intent of finality. See Lehman, 39 S.W.3d at 203-04.
Paul has appealed from a final, appealable Order. Therefore, we should address his issues on appeal. Because the majority holds otherwise, I dissent.