ME Okere v. Jeffrey Blatt--Appeal from County Court at Law No. 2 of Dallas County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 11th District Court of Appeals » 2001 » ME Okere v. Jeffrey Blatt--Appeal from County Court at Law No. 2 of Dallas County

State: Texas

Court: Texas Northern District Court

Docket No: 11-01-00016-CV

Case Date: 09/13/2001

Plaintiff: ME Okere

Defendant: Jeffrey Blatt--Appeal from County Court at Law No. 2 of Dallas County

Preview:Paul Fowler v. Sheila Fowler and Interest of K.J.F. and
N.P.F., Children--Appeal from 87th District Court of
Leon County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-01-294-CV
PAUL FOWLER,
Appellant
v.
SHEILA FOWLER,
Appellee
AND IN THE INTEREST OF
K.J.F. AND N.P.F., CHILDREN
From the 87th District Court
Leon County, Texas
Trial Court # 6354-B
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
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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 Laws 113, 141, repealed, Act of Apr. 22, 1999,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
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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.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna //
(Justice Vance dissenting)
Appeal dismissed
Opinion delivered and filed January 14, 2004
[CV06]
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