Opinion
No. 04-04-00634-CV
Delivered and Filed: April 13, 2005.
This proceeding arises out of Cause No. 2004-CI-06878, styled In the Interest of S.M.W., pending in the 73rd Judicial District Court, Bexar County, Texas, the Honorable Martha Tanner presiding.
Petition for Writ of Mandamus Conditionally Granted in Part, Denied in Part.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Relator Jeremy M. Wyckoff seeks a writ of mandamus ordering the trial judge to vacate her order setting aside the prior order adjudicating parentage and her "Temporary Orders in Suit Affecting Parent-Child Relationship." Because we conclude that the trial judge had no authority to vacate the order adjudicating parentage, we conditionally grant in part Wyckoff's petition. However, because we also conclude that the trial judge did not abuse her discretion in entering temporary orders, we deny in part Wyckoff's petition.
Background
Samantha Vogel, a real party in interest, became pregnant at fifteen years old and eventually gave birth to S.M.W. After the birth of S.M.W., Vogel moved in with Jeremy Wyckoff, her boyfriend and S.M.W.'s father. On May 6, 2004, a trial judge (not the respondent here) signed an "Agreed Order Adjudicating Parentage," which found that Wyckoff was S.M.W.'s father and named Wyckoff and Vogel joint managing conservators of S.M.W.
Two months later, Vogel filed a "Motion to Set Aside Prior Order or in the Alternative Motion in Suit Affecting Parent-Child Relationship and Application for Temporary Orders." Vogel requested that the trial judge set aside the previous order because at the time the order was signed, (1) she was and remains a minor, and (2) she was not represented by an attorney or an attorney ad litem. At the hearing on the motion, Vogel also argued that she was never served and never waived citation. Vogel also requested, in the alternative, modification, arguing that S.M.W. is subject to being abused by Wyckoff. Additionally, Vogel requested that temporary orders be entered.
Before the hearing on Vogel's motion, Teresa Vogel, S.M.W.'s maternal grandmother, intervened in the SAPCR suit.
Wyckoff then filed a petition for writ of habeas corpus and motion for issuance of a writ of attachment, alleging that S.M.W. was being illegally withheld by Vogel. He also filed a "Motion to Deny Relief in Suit to Modify the Parent/Child Relationship and Setting Aside the Prior Order."
On August 4, 2004, the trial judge heard Vogel's motion to set aside the prior order and Wyckoff's motion to deny relief. She orally vacated the prior order adjudicating parentage. The trial judge then held a hearing on temporary orders. She made clear that the hearing was not a final one, but one on temporary orders. The first witness was Diana Beams of the Texas Department of Family Protective Services. Beams testified that on May 3, 2004, her agency received a referral for an investigation regarding a bruise on S.M.W.'s leg. Because the agency was concerned that Vogel was clinically depressed and because Vogel had expressed thoughts of hurting S.M.W., the agency enacted a safety plan in which Vogel would only have supervised contact with S.M.W. More than two months later, on July 22nd, the agency received new allegations of Wyckoff being bipolar and on heroin and of domestic violence between Wyckoff and Vogel. On July 27th, the agency received another referral that there was a bruise on S.M.W.'s bottom and that Wyckoff had threatened Vogel with a shotgun. There were also "drug abuse allegations." Although Beams testified that the agency's investigation was ongoing, she stated that the agency's current recommendation was that neither Vogel nor Wyckoff have unsupervised contact with S.M.W. According to Beams, if the trial judge did not place S.M.W. with a suitable adult, S.M.W. might be placed into foster care.
On September 27, 2004, the trial judge memorialized her oral ruling by signing the "Order Setting Aside Prior Order." This order set aside the prior order adjudicating Wyckoff as the father and declared the prior order "null and void."
During Wyckoff's attorney's cross-examination of Beams, the trial judge interrupted the attorney:
[Court]: Can I cut to the chase, because we're spending a lot of time here and a lot of these folks' money? And having heard the fact that CPS is saying neither one of these parents right now should be unsupervised with this child, do I have an alternative? I've got the [maternal] grandmother. And I am going — I am not personally going to put the child in a stranger's home. I'm just not. I mean — so I'll work with you guys on access and everything else, if there's a question on access.
[Vogel's attorney]: I don't have a problem.
[Court]: But I'm not going to go — fly in the face of this department's recommendation.
Wyckoff's counsel then argued that he needed to ask Diana Beams more questions about whether Vogel had told Beams that she had lied about the allegations. The trial judge, however, made clear that she was not going to go against the department's recommendation that neither parent at this time have unsupervised visits with S.M.W. Wyckoff's counsel then argued that Wyckoff's mother, the paternal grandmother, could also take care of S.M.W. The trial judge, however, explained that the maternal grandmother was the only person besides Vogel and Wyckoff before the court:
[Court]: I understand what you're saying, but I don't have the paternal grandparents before the court. I can't just reach out there and pull somebody out of the audience to be the one that supervises. I just can't do it, legally. And you know that. So, I mean — so, I will get — I think I can probably give them the right to supervise [Jeremy].
In an order entitled "Temporary Orders in Suit Affecting the Parent-Child Relationship," the trial judge appointed Vogel and Wyckoff as temporary joint managing conservators of S.M.W. The trial judge also appointed the maternal grandmother, Teresa Vogel, as a non-parent temporary joint managing conservator, giving Teresa Vogel temporary custody of the child. Wyckoff was given the right to have supervised access of S.M.W., supervised by Teresa Vogel. And, both Vogel and Wyckoff were ordered to pay Teresa Vogel $75 per month in temporary child support.
After Wyckoff filed his petition for writ of mandamus challenging both the order vacating the order adjudicating parentage and the temporary orders, we requested a response from the real parties in interest and the respondent. The respondent, the trial judge, has filed a response. In her response, the trial judge states that Vogel and Wyckoff have now married. Indeed, Vogel has filed a response, stating the following:
My former attorney did not represent my interest. I disagree with the Honorable Judge's decision to set aside the prior order and enter temporary orders. I did not want to take away custody of my son, [S.M.W.], from his father, Jeremy M. Wyckoff. I do not believe [that] the orders entered [by] the court are in [S.M.W.]'s best interest. I respectfully request that all the relief sought by the relator, Jeremy M. Wyckoff, be granted.
Discussion
A. Vacating the Prior Order
In his petition, Wyckoff complains that the trial judge had no authority to vacate the order adjudicating parentage and that she abused her discretion in entering temporary orders. We agree that the trial judge had no authority to vacate the prior order adjudicating parentage; however, we disagree with Wyckoff's argument that she abused her discretion in entering temporary orders.
The "Agreed Order Adjudicating Parentage" was entered on May 6, 2004. On July 27, 2004, more than two months later, Vogel filed her "Motion to Set Aside Prior Order or in the Alternative Modify in Suit Affecting Parent-Child Relationship and Application for Temporary Orders."
Section 160.637(e) of the Texas Family Code describes when a party may challenge an order adjudicating parentage:
A party to an adjudication of paternity may challenge the adjudication only under the laws of this state relating to appeal, the vacating of judgments, or other judicial review.
Tex. Fam. Code Ann. § 160.637 (Vernon 2002) (emphasis added). Here, Vogel did not file a timely motion for new trial or a motion to modify, correct, or reform the order adjudicating parentage. See Tex. Civ. P. 329b(a), (g) (allowing party thirty days from date of judgment to file motion for new trial or motion to modify, correct, or reform the judgment). Thus, the trial judge's plenary power over the order adjudicating parentage expired on June 7, 2004. See Tex. R. Civ. P. 329b(d). And, after a trial judge's plenary power expires, she has no authority to modify a judgment:
On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law; provided that the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court's plenary power had expired.
Tex. R. Civ. P. 329b(f). Thus, the trial judge had no authority to modify the order adjudicating parentage.
Furthermore, Vogel did not pursue remedy by appeal or bill of review. She did not file a bill of review as allowed by Texas Rule of Civil Procedure 329b(f); instead she filed a "motion to set aside." Nor, did she file a direct appeal or a restricted appeal, challenging the order adjudicating parentage. Thus, the trial judge had no authority to vacate the prior judgment unless the previous order was "void because [it was] signed after the court's plenary power had expired." Tex. R. Civ. P. 329b(f). Here, however, the order adjudicating parentage was not signed after the trial court's plenary power had expired; in fact, the opposite is true. The order setting aside the order adjudicating parentage was signed after the trial court's plenary power expired.
In her response, the trial judge argues that she had authority to vacate the order adjudicating parentage because the order adjudicating parentage is an "agreed order." According to the trial judge, as an agreed order, it is governed by the laws relating to contracts rather than the laws relating to judgments. See Ex parte Jones, 358 S.W.2d 370, 375 (Tex. 1962). And, according to the trial judge, a contract is not binding upon a minor who is not emancipated if that minor chooses to disallow the contract. See Swain v. Wiley College, 74 S.W.3d 143, 146-47 (Tex.App.-Texarkana 2002, no pet.) (noting that an otherwise valid contract between an adult and a minor is not void but only voidable); Pioneer Cas. Co. v. Bush, 457 S.W.2d 165, 168 (Tex.Civ.App.-Tyler 1970, writ ref'd n.r.e.) ("[T]he contract of a minor whose disability has not been judicially removed is not void but only voidable at the minor's instance."). In other words, a contract entered into by a minor is voidable and becomes void upon election by the minor. Thus, the trial judge argues that Vogel's motion to set aside was her election to nullify the "voidable" agreed order adjudicating parentage. And, once Vogel made that election, the agreed order adjudicating parentage "was of no effect."
We disagree. We agree that the Texas Supreme Court has held that an agreed judgment "must be interpreted as if it were a contract between the parties and the interpretation thereof is governed by the laws relating to contracts, rather than laws relating to judgments." McCray v. McCray, 584 S.W.2d 279, 281 (Tex. 1979) (quoting Ex parte Jones, 358 S.W.2d at 375). However, the Supreme Court has also held that "[a]lthough rules relating to contract interpretation apply, an agreed judgment is accorded the same degree of finality and binding force as a final judgment rendered at the conclusion of an adversary proceeding." Id. (emphasis added). Thus, the agreed order adjudicating parentage was a final judgment and was subject to the same rules that apply to all cases. Pursuant to the Texas Family Code and the Texas Rules of Civil and Appellate Procedure discussed above, the trial judge had no authority to vacate the order adjudicating parentage.
The trial judge also raises policy concerns, emphasizing that Vogel was not served in the original action and that she did not have an attorney ad litem representing her. These are all issues that Vogel could raise in a restricted appeal or a bill of review. They do not, however, give the trial judge the authority to vacate a prior final judgment.
We, therefore, conditionally grant Wyckoff's petition in part and order the trial judge to withdraw her order vacating the prior order adjudicating parentage.
B. Holding a Modification Hearing
Although the trial judge did not have authority to vacate the order adjudicating parentage, she did have the authority, based on Vogel's motion to modify, to enter temporary orders. According to Wyckoff, however, the trial judge abused her discretion in holding a hearing on Vogel's motion to modify. For support, he relies on section 156.102 of the Family Code which requires a person seeking modification within one year of the original order to file an affidavit. See Tex. Fam. Code Ann. § 156.102(a) (Vernon Supp. 2004-05). According to Wyckoff, Vogel has never filed an affidavit complying with section 156.102(a). Section 156.102(c) states that the trial "court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation listed in Subsection (b) are stated in the affidavit." Tex. Fam. Code Ann. § 156.102(c) (Vernon Supp. 2004-05) (emphasis added). Because the trial judge held a hearing without requiring Vogel to file the affidavit, Wyckoff argues that the trial judge abused her discretion.
The flaw, however, in Wyckoff's logic is that the trial judge has yet to hold a final hearing on Vogel's motion to modify. The trial judge made very clear that she was merely holding a hearing on temporary orders, not a final hearing on modification.
C. Temporary Orders
Wyckoff also argues that the trial judge abused her discretion in entering temporary orders on insufficient evidence. Section 156.006 provides that "[e]xcept as provided by Subsection (b), the court may render a temporary order in a suit for modification." Tex. Fam. Code Ann. § 156.006(a) (Vernon Supp. 2004-05). Subsection (b) provides the following:
While a suit for modification is pending, the court may not render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless:
(1) the order is necessary because the child's present living environment may endanger the child's physical health or significantly impair the child's emotional development;
(2) the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months and the temporary order is in the best interest of the child; or
(3) the child is 12 years of age or older and has filed with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child and the temporary order designating that person is in the best interest of the child.
Tex. Fam. Code Ann. § 156.006(b) (Vernon Supp. 2004-05).
Here, the trial judge awarded temporary custody to the maternal grandmother. Pursuant to section 156.006(b)(1), the trial judge had authority to do so if "the child's present living environment may endanger the child's physical health or significantly impair the child's emotional development." The testimony of Diana Beams of the Texas Department of Family Protective Services was sufficient to meet this standard. Thus, the trial judge did not abuse her discretion in entering temporary orders and giving temporary custody to the maternal grandmother.
Additionally, Wyckoff argues that he was prevented from presenting evidence at the hearing during his cross-examination of Diana Beams. Wyckoff's attorney was given plenty of opportunity for cross-examination. However, when he began to question Diana Beams about Vogel allegedly agreeing in the original order adjudicating parentage to give Jeremy custody because he was the better parent, the trial judge stopped the questioning and asked if she could "cut to the chase":
Can I cut to the chase, because we're spending a lot of time and a lot of these folks' money? And having heard the fact that CPS is saying that neither one of these parents right now should be unsupervised with this child, do I have an alternative? I've got the grandmother. And I am going — I a not personally going to put the child in a stranger's home. I'm just not. I mean — so I'll work with you guys on access and everything else, if there's a question on access.
Wyckoff's attorney then began questioning Diana Beams about whether the paternal grandparents would be suitable candidates for receiving temporary custody. The trial judge again stopped Wyckoff's counsel, reminding him that the paternal grandparents were not parties to the current action. Wyckoff's counsel then wanted to question Diana Beams about an alleged phone call that she received from Vogel during which Vogel allegedly told Diana Beams that she had fabricated the allegations against Jeremy. The trial judge then asked, "Counsel, what difference does it make?" Wyckoff's attorney replied,
Counsel: Your Honor, [the difference] is that [Vogel] has said that what she said was all false, that there was no truth to it, and that she — the only reason she said it was because the father had indicated that he was thinking about moving to El Paso, and he was telling her the truth. And I think that that statement by the mother is very important to what's taking place.
Court: That may be on the final orders, okay? What I am saying right now is what CPS is saying is the grandmother has to be the supervisor.
Counsel: I don't think that's what CPS is saying.
Court: Well, they don't have — they haven't investigated anybody else, is that correct, to be a supervising parent?
Diana Beams: Basically, what I'm saying is — basically, what the decision is going to be today from you, Your Honor — if the baby is going to be with mom, there needs to be supervised visits. Baby going to be with dad, there needs to be supervised visits.
Counsel: That's all she's saying. She's not saying that she needs to be with the — with the maternal grandmother.
Court: Well, [the maternal grandmother is] the only one else before the Court, counsel.
The court then took a recess. That afternoon, Wyckoff's counsel went back on the record and claimed that he had been unable to finish cross-examining Diana Beams or call other witnesses. He then made a bill of exceptions claiming that Diana Beams would have testified about the call she received from Vogel, who allegedly said that she had fabricated the allegations against Wyckoff. And, Vogel would have testified that she fabricated the allegations against Wyckoff. The maternal grandmother, Teresa Vogel, would have testified that she works a 3 p.m. to midnight shift and has no choice to leave the child with Vogel and that she has refused to allow Wyckoff to see the child for the past two weeks.
We do not find an abuse of discretion by the trial judge. The trial judge's point was that even if Wyckoff's attorney entered in all of this evidence, with regard to temporary orders, she was not going to go against CPS's recommendation, especially since there was an ongoing investigation.
Conclusion
Because the trial judge had no authority to vacate the original order adjudicating parentage, we conditionally grant Wyckoff's petition in part and direct respondent to withdraw her order vacating the order adjudicating parentage. Only if the Honorable Martha Tanner fails to comply will we issue the writ. With regard to the trial judge's temporary orders, we find no abuse of discretion and deny in part Wyckoff's petition.
DISSENTING OPINION
Each litigant has a fundamental right to be heard under the due process clause of the United States and Texas Constitutions. Young v. Martinez, 685 S.W.2d 361, 363 (Tex.App.-San Antonio 1984, no writ.). "The right to be heard assures a full hearing before a court having jurisdiction of the matter, the right to introduce evidence at a meaningful time and in a meaningful manner, and to have judicial findings based upon that evidence." Id. A trial court is not authorized to render judgment against a defendant before the defendant has had the opportunity to offer evidence in his or her behalf and has rested. Jordan v. Jordan, 653 S.W.2d 356, 358 (Tex.App.-San Antonio 1983, no writ).
In this case, the trial court interrupted Wyckoff's presentation of evidence. The trial court wanted to "cut to the chase" because the trial court already had determined that S.V.M would not be left in his parents' unsupervised custody; therefore, the only alternative the trial court intended to consider was the placement of S.V.M. in the custody of his maternal grandmother. The trial court made this determination, however, before Wyckoff was given the opportunity to present evidence that the maternal grandmother worked a 3 p.m. to midnight shift, and her only choice was to leave S.V.M. in Vogel's unsupervised custody. Thus, S.V.M. would be left in the unsupervised custody of the same person that Beams testified was on a mood stabilizer with a clinical depression diagnosis. More critically, S.V.M. would be left in the unsupervised custody of the same person who had expressed thoughts of hurting S.V.M. Particularly in view of the recent crisis involving child abuse, I believe the trial court abused its discretion in truncating Wyckoff's due process rights in an effort to "cut to the chase," thereby precluding the court's full consideration of this critical testimony. Because the majority finds no abuse of discretion, I respectfully dissent.