Royce Allen Phillips v. Alicia Lucile Phillips ( 2021 )


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  • Affirmed and Majority and Concurring Opinions filed August 31, 2021.
    In The
    Fourteenth Court of Appeals
    NO. 14-19-00618-CV
    ROYCE ALLEN PHILLIPS, Appellant
    V.
    ALICIA LUCILE PHILLIPS, Appellee
    On Appeal from the 280th District Court
    Harris County, Texas
    Trial Court Cause No. 2019-17786
    CONCURRING OPINION
    I concur in the judgment and join the majority opinion, but write separately
    to note the ever-expanding problem of subjecting parties to conflicting orders
    issued by the protective order court and the court in which a divorce or suit
    affecting the parent-child relationship (SAPCR) is pending, at times subjecting
    opposing parties to a finding of contempt for complying with the order of one court
    while disregarding or violating a conflicting order of the other court. This conflict
    also allows one party to in effect circumvent the order of the court in which a
    divorce or SAPCR is pending by filing a motion and obtaining a protective order in
    a statutorily created protective order court.
    The protective order courts in Harris County were created to allow victims
    of family violence convenient access to the courts, a necessary and noble purpose.
    See Tex. Gov’t Code Ann. § 24.112(h), (i). Family court dockets in Harris County
    are voluminous and there is a necessity to immediately address family violence to
    protect children, spouses, and domestic partners. Many studies indicate less than
    fifty percent of all family violence incidents are reported to police, and that
    domestic violence is endemic in our society. See Statewide Prevalence of Intimate
    Partner Violence, INSTITUTE    ON   DOMESTIC VIOLENCE & SEXUAL ASSAULT (June
    2011) (noting that more than one-third of adult Texans have personally
    experienced intimate partner violence); Civil Protective Orders & Risk of
    Subsequent Police-Reported Violence, 288 J. AMER. MED. ASS’N, 589 (2002)
    (noting that victim is 80% less likely to be victimized after being granted a
    protective order); Intimate Partner Violence, BUREAU OF JUSTICE STATISTICS (May
    2000) (noting 198,366 incidents of domestic violence in the 2011 Crime in Texas
    Report).
    If the court in which the divorce or SAPCR proceeding is pending is
    unavailable, it makes sense for the victim(s) of family violence to file for a
    protective order in a court that can make factual findings and take immediate
    action to protect family members. However, in the event of conflicting orders, Title
    Four, Subtitle B Chapter 82 and 85, confuses, rather than clarifies, which court
    order should prevail.
    The 280th District Court is currently designated as the domestic violence
    district court for Harris County. See Tex. Gov’t Code Ann. § 24.457 (identifying
    280th as district court for Harris County). Family Code § 85.062 provides:
    2
    APPLICATION FILED WHILE SUIT FOR DISSOLUTION
    OF MARRIAGE OR SUIT AFFECTING PARENT-CHILD
    RELATIONSHIP PENDING.
    (a) If a suit for dissolution of a marriage or suit affecting the
    parent-child relationship is pending, a party to the suit may apply for a
    protective order against another party to the suit by filing an
    application:
    (1) in the court in which the suit is pending; or
    (2) in a court in the county in which the applicant resides if the
    applicant resides outside the jurisdiction of the court in which the suit
    is pending.
    
    Tex. Fam. Code Ann. § 85.062
    (a). The Family Code further mandates that a
    “person who wishes to apply for a protective order with respect to the person’s
    spouse and who is a party to a suit for the dissolution of a marriage . . . must file
    the application as required by Subchapter D, Chapter 85.” 
    Id.
     § 82.005 (emphasis
    added). Section 85.062 is contained within Subchapter D of Chapter 85.
    The combined statutes appear to require the parties to file for a protective
    order in the court in which a divorce or SAPCR suit is pending (“must file the
    application as required by Subchapter D, Chapter 85”), but Family Code
    § 85.062(a) provides if a suit for divorce or a SAPCR is pending, “a party to the
    suit may apply for a protective order against another party to the suit by filing an
    application . . . in the court in which the suit is pending.” Id. § 85.062. Because all
    district courts have subject-matter jurisdiction over protective order proceedings,
    see Tex. Const. art. V, § 8; Tex. Gov’t Code Ann. §§ 24.007, 24.112(h), (i),
    24.951, and specifically, in Harris County, the 280th District Court               has
    jurisdiction over family violence cases, see Tex. Gov’t Code Ann. §§ 24.112(h), (i)
    (providing that Harris County shall designate a “domestic violence district court”
    that gives preference to “domestic violence cases”), 24.457 (identifying 280th as
    district court for Harris County), the resulting confusion is understandable.
    3
    Family Code § 85.064 allows for a transfer of a final protective order if the
    order was rendered before the filing of a SAPCR or while a SAPCR is pending,
    “and the court that rendered the order may, on the motion of a party or on the
    court’s own motion, transfer the protective order to the court having jurisdiction of
    the suit if the court makes the finding prescribed by Subsection (c).” Id.
    § 85.064(a). Section 85.064(a) allows the protective order court to transfer a
    protective order under § 85.064(a) if the protective order court finds that the
    transfer is: (1) in the interest of justice, or (2) for the safety and convenience of a
    party or witness. Id. § 85.064(c). The provision is not mandatory. In re Compton,
    
    117 S.W.3d 548
    , 550 (Tex. App.—Texarkana 2003, orig. proceeding); see 
    Tex. Fam. Code Ann. § 85.064
    (a). Family Code § 85.009 states that a protective order
    under Chapter 85 is valid and enforceable, pending action by the court that
    rendered the order until the order is superseded by another court with jurisdiction
    over the order. 
    Tex. Fam. Code Ann. § 85.009
    .
    Because the protective order can (and often does) subject both parties to a
    protective order for two years, the stakes are high. This result provides for the
    possibility that conflicting orders will allow the parties, who often do not get along,
    to attempt to use the courts as a weapon to escalate the animosity, length of
    litigation, cost to the parties, and above all compound the detrimental effects of the
    proceedings to the children. The failure of the legislature to resolve this conflict is
    detrimental to the victims of family violence, potentially results in forum shopping,
    causes confusion for the parties and counsel, and fails to promote judicial
    economy.
    /s/ Margaret “Meg” Poissant
    Justice
    Panel consists of Justices Spain, Hassan, and Poissant. (Spain, J., majority).
    4
    

Document Info

Docket Number: 14-19-00618-CV

Filed Date: 8/31/2021

Precedential Status: Precedential

Modified Date: 9/6/2021