Jurisdiction to Modify Custody or Not when Appeal is Pending?

Archive, Blog, Brad M. LaMorgese

Get ready for a mind bender. Child order finalized, but appealed. A party files a modification suit of the child order, while appeal is still pending. Should the modification suit be dismissed because exclusive jurisdiction is with the Court of Appeals?

Yes, the modification should be dismissed, at least according to the El Paso COA in In re E.W.S. in an Opinion dated August 26. The opinion gives a look at this puzzling problem, and suggests several remedies a COA may consider when a case changes why the appeal is pending. Thus, the filings about the change must start in the COA, not the trial court.

The COA lays out several problematic hypotheticals that show changes that should be addressed even if an appeal is pending. Near the end of the opinion, the COA suggests what to do if such a change arises:

We perceive two other remedies. As we have noted, Section 109.002 provides that the appellate court, on a proper showing, may permit the order to be suspended. This is true even if the trial court refused to do so within its period of plenary power. That would be a reasonable alternative to solve the issue presented by Hypothetical One. Appellate courts are not fact finders and we do not take testimony, which complicates Hypothetical Two. But nothing in Texas jurisprudence prevents a litigant from filing a motion with the court of appeals, explaining circumstances such as those contained in the hypotheticals, and asking the court to abate the appeal and remand to the trial court for an emergency hearing to protect the child.4 The appellate court can then review the specific circumstances in deciding whether to grant the motion. If protective orders are entered, the appeal can be reinstated and the propriety of the final order determined. Such motions are authorized by TEX.R.APP.P. 10. Innovative minds will no doubt design other uses for the rule.