Rickey T. Terry v. Brenda Gail Terry

NO. 12-03-00169-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS RICKY T. TERRY, § APPEAL FROM THE APPELLANT V. § COUNTY COURT AT LAW NO. 2 OF BRENDA GAIL TERRY, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION Ricky T. Terry ("Appellant") appeals the trial court's order declining to grant relief sought by Appellant in his petition to modify the terms of his community supervision based on a lack of jurisdiction. Appellant raises three issues on appeal. We affirm. Background Appellant was divorced from his wife, Brenda Gail Terry, by a final divorce decree on January 12, 1989. Appellant was ordered to make support payments for his three children in the amount of three hundred fifty-six dollars per month. Appellant failed to make the support payments as ordered. The Attorney General for the State of Texas (the "State") petitioned for and, on March 28, 2002, was granted an order enforcing Appellant's child support obligation. The trial court found that Appellant was $59,272.02 in arrears and ordered Appellant to pay two hundred dollars per month in addition to his previously-ordered child support obligation until the arrearage was paid in full. The trial court found Appellant in contempt of court, but suspended Appellant's commitment and placed Appellant on community supervision for one hundred twenty months. Among the terms and conditions of Appellant's community supervision was the requirement that Appellant pay child support and arrearage payments as ordered by the court. Appellant was subsequently determined to have been disabled since April 16, 2001. Following the disability determination, Appellant sought, and by order dated February 20, 2003, was granted a reduction of his child support payments to one hundred ten dollars per month. Thereafter, Appellant petitioned the trial court, seeking to modify the terms of his community supervision by, among other things, reducing the amount of his arrearage payments. The trial court denied Appellant's petition, finding that it did not have jurisdiction to modify the amount of Appellant's court-ordered arrearage payments. Modification of Arrearage Payments In his first and second issues, Appellant argues that the trial court had jurisdiction under the Texas Family Code to terminate his community supervision prior to his payment of arrearages owed and to modify the previously-ordered child support arrearage payment. Under the Family Code, the trial court may discharge the respondent from community supervision on the motion of the respondent if the court finds that the respondent (1) has satisfactorily completed one year of community supervision, and (2) has fully complied with the community supervision order. See Tex. Fam. Code Ann. § 157.217 (Vernon 2002). The Family Code also permits the court to continue, modify, or revoke community supervision upon a motion by the State alleging that a respondent violated the terms of his community supervision. See Tex. Fam. Code Ann. §§ 157.214, 157.216 (Vernon 2002). In the instant case, the State did not file a motion seeking to revoke Appellant's community supervision. Appellant was placed on community supervision by order dated March 28, 2002. Appellant filed his motion seeking to modify the terms of his community supervision on February 21, 2003. The trial court's order denying Appellant relief was signed on April 23, 2003. Appellant does not argue in his brief that he fully complied with the terms of his community supervision order and the record neither expressly supports nor disproves such satisfactory compliance. Nonetheless, the crux of Appellant's argument is that the trial court had jurisdiction, either by virtue of its retained jurisdiction in accordance with Texas Family Code section 157.269 or by the same manner in which criminal courts have the authority to modify the terms of community supervision pursuant to Texas Code of Criminal Procedure article 42.12. Indeed, the trial court did not find that it had no jurisdiction to modify any terms of Appellant's community supervision. Rather, the trial court's order specified that "it [did] not have jurisdiction to modify the amount of [Appellant's] court ordered arrears payment." Thus, whether the trial court had jurisdiction to modify the terms of Appellant's community supervision, apart from the requirement that Appellant make specified arrearage payments, was not the basis for the trial court's denial of relief to Appellant and is, therefore, not ripe for our consideration. Texas Family Code section 157.269 states that once child support arrearages are reduced to a final judgment, the trial court "retains jurisdiction" until the arrearages are paid in full as required by the court order. See Tex. Fam. Code Ann. § 157.269 (Vernon 2002); Moore v. Brown, 993 S.W.2d 871, 873 (Tex. App.-Fort Worth 1999, pet. denied). The jurisdiction conferred by section 157.269 enables the trial court to enforce its judgment for arrearage payments. Moore, 993 S.W.2d at 873. However, such jurisdiction is not tantamount to continuing, exclusive jurisdiction, thereby allowing the trial court to modify the previously entered judgment. Id. at 874. Nothing in section 157.269 suggests that the Legislature intended to vest the trial court with continuing, exclusive jurisdiction to later modify an earlier judgment that awarded a specific amount of past-due child support. Id. We must presume that in drafting a statute, the Legislature has a sound purpose for including or excluding relevant provisions. Id. (citing Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)). Further still, were we to conclude that such continuing, exclusive jurisdiction did exist, to allow the trial court to modify a final judgment as Appellant seeks to do would ignore the rule governing a trial court's plenary power. See Tex. R. Civ. P. 329b(d). Once a trial court's plenary power has expired, it has no jurisdiction to modify or change its original judgment except by bill of review. See Lundy v. Lundy, 973 S.W.2d 687, 688 (Tex. App.-Tyler 1998, pet. denied) ("[A] court may not set aside or alter a judgment after the expiration of its plenary power, and an order attempting to do so is void."). Therefore, we will not imply such continuing, exclusive jurisdiction, absent clear legislative intent. Appellant's first and second issues are overruled. Equity Absent Jurisdiction In his third issue, Appellant argues that, absent jurisdiction, the trial court should have granted Appellant equitable relief as there was no remedy at law. Equity jurisdiction does not flow merely from the alleged inadequacy of a remedy at law, nor can it originate solely from a court's good intentions to do what seems "just" or "right"; the jurisdiction of Texas courts - the very authority to decide cases - is conferred solely by the constitution and the statutes of the state. State v. Morales, 869 S.W.2d 941, 942 (Tex. 1994). As set forth above, here, no jurisdiction is conferred on the trial court to modify a judgment that awarded a specific amount of past-due child support after the court's plenary power expired. The very balance of state governmental power imposed by the framers of the Texas Constitution depends on each branch, and particularly the judiciary, operating within its jurisdictional bounds. Id. at 949. The power of government emanates from the people's delegation of power to government. Id. (emphasis in original). The checks and balances inherent in our form of government depend upon the judiciary's equanimity and particularly upon our self restraint. Id. When a court lacks jurisdiction, its only legitimate choice is to dismiss. Thus, when the trial court determined it lacked jurisdiction, it did not err by declining to grant equitable relief. Appellant's third issue is overruled. Conclusion Having overruled Appellant's issues one, two, and three, we affirm the trial court's order dismissing Appellant's suit for lack of jurisdiction. DIANE DEVASTO Justice Opinion delivered December 31, 2003. Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J. (PUBLISH)