Opinion issued August 29, 2013




                                      In The

                          First Court of Appeals

                              NO. 01-12-00580-CV


            JEFFERY JANNER AND MEG JANNER, Appellants

                                        V.

                    KELSEY A. RICHARDSON, Appellee


                   On Appeal from the County Court at Law
                         Washington County, Texas
                       Trial Court Cause No. CCL6370


                                 OPINION

      Jeffery and Meg Janner filed a petition in intervention in their son Joel Neal

Janner’s divorce proceeding, seeking access to their grandchild, D.K.J. Joel had

died nearly seven months before the Janners sought to intervene in the case. The

trial court, concluding that it had lost jurisdiction over the proceeding when Joel
died, dismissed the Janners’ petition and the suit and vacated the temporary orders

it had entered after Joel’s death. The Janners appealed, contending that the trial

court erred in dismissing the case and should have treated their petition in

intervention as an original petition in a new case. Finding no error, we affirm.

                                   Background

      Joel Neal Janner and Kelsey A. Richardson were married and had one child,

D.K.J. On June 24, 2010, Kelsey filed for divorce from Joel and requested that the

trial court enter an order requiring that all possession of and access to D.K.J. by

Joel be supervised. On August 25, 2010, the trial court signed temporary orders

requiring Joel’s visitation with D.K.J. be supervised.      Three months later, on

November 27, 2010, Joel died.

      Nearly seven months after Joel’s death, on June 20, 2011, Joel’s parents,

Jeffrey and Meg Janner, filed in the divorce proceeding a “Petition in Intervention

in Suit Affecting the Parent-Child Relationship,” seeking access to their

grandchild, D.K.J. The Janners, however, did not personally serve Kelsey with the

petition at that time. In early July 2011, Kelsey moved to the U.S. Virgin Islands

with D.K.J. One month after the move, the trial court held a temporary orders

hearing at which Kelsey was not present. On October 24, 2011, the trial court

signed temporary orders granting the Janners access to D.K.J.




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      Kelsey ultimately was served with the petition in intervention and the

temporary orders on December 12, 2011, six months after the petition was filed,

while she was visiting family in Texas. Kelsey then filed a document entitled

“Plea to Decline Jurisdiction, Plea in Abatement and Motion to Dismiss.” Kelsey

requested that the trial court dismiss the petition in intervention because the trial

court had lost jurisdiction over the divorce proceeding upon Joel’s death, leaving

no suit in which the Janners could intervene. The trial court concluded that it lost

jurisdiction upon Joel’s death, vacated its temporary orders, and dismissed the suit.

The Janners appealed.

                                    Discussion

      “It is well settled that a cause of action for a divorce is purely personal and

that the cause of action for a divorce terminates on the death of either spouse prior

to the rendition of a judgment granting a divorce.” Garrison v. Tex. Commerce

Bank, 560 S.W.2d 451, 453 (Tex. Civ. App.—Houston [1st Dist.] 1977, writ ref’d

n.r.e.); see also Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex. 1983) (orig.

proceeding). This includes all “incidental inquiries of property rights and child

custody.” Whatley, 649 S.W.2d at 299; see also Pollard v. Pollard, 316 S.W.3d

246, 250 (Tex. App.—Dallas 2010, no pet.).

      Indeed, “[t]he death of either party to the divorce action prior to entry of the

divorce decree withdraws the court’s subject matter jurisdiction over the divorce

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action.” Pollard, 316 S.W.3d at 251; see Garcia v. Daggett, 742 S.W.2d 808,

809–10 (Tex. App.—Houston [1st Dist.] 1987, orig. proceeding [leave denied])

(death of wife immediately deprived court of jurisdiction over divorce action, and

temporary custody orders entered after death of wife were void). “The proper

procedural disposition of a divorce action when one of the parties dies is

dismissal.” Whatley, 649 S.W.2d at 299; see Garcia, 742 S.W.2d at 810 (stating

that, after death of one party to divorce action, “the trial court was without

jurisdiction to issue any orders based on the underlying divorce action”).

      In this case, it is undisputed that Joel died before the Janners filed their

petition in intervention. Under well-established Texas law, Joel’s death caused the

trial court to lose jurisdiction over the divorce action in which the Janners

attempted to intervene. See Pollard, 316 S.W.3d at 251; Garcia, 742 S.W.2d at

809–10. Accordingly, the trial court was required to dismiss the case and vacate

the orders it had entered after Joel’s death. Whatley, 649 S.W.2d at 299; Garcia,

742 S.W.2d at 810. The trial court applied these settled principles and set forth

this rationale in its findings of fact and conclusions of law.

      The Janners nevertheless argued below, and argue here, that the trial court

should have treated their petition in intervention as an original petition for access




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to D.K.J. 1   They argue that they could have filed an original proceeding for

grandparent access instead of intervening in the divorce action, and therefore, the

trial court should have treated their petition in intervention as an original petition in

a separate suit.    They contend that this is required by Texas Rule of Civil

Procedure 71, which is titled “Misnomer of Pleading.” It states: “When a party has

mistakenly designated any plea or pleading, the court, if justice so requires, shall

treat the plea or pleading as if it had been properly designated.” TEX. R. CIV. P. 71.

The typical application of Rule 71 permits a trial court to consider a motion or

other filing according to its substance, even if it is not accurately titled. See, e.g.,

C/S Solutions, Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d 299, 306–07

(Tex. App.—Houston [1st Dist.] 2008, no pet.) (although plaintiff titled document

a “nonsuit,” in substance document was an amended pleading, and pursuant to

Rule 71, was not controlled by the fact that the term “nonsuit” appeared in

document); Johnson v. State Farm Lloyds, 204 S.W.3d 897, 899 n.1 (Tex. App.—

Dallas 2006), aff’d, 290 S.W.3d 886 (Tex. 2009) (motion titled “Motion to

Compel,” which requested in the body summary judgment, was properly treated as

a motion for summary judgment pursuant to Rule 71); BCY Water Supply Corp. v.

Residential Inv., Inc., 170 S.W.3d 596, 604–05 (Tex. App.—Tyler 2005, pet.

1
      Family Code Section 153.432 permits grandparents to file an original suit or a suit
      for modification to seek access to a grandchild. See TEX. FAM. CODE ANN.
      § 153.432(a), (b) (West Supp. 2012); see also In re Smith, 260 S.W.3d 568, 573
      (Tex. App.—Houston [14th Dist.] 2008, no pet.).
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denied) (motion that was entitled “motion for new trial” was correctly treated as

motion for JNOV under Rule 71). But the Janners cite no authority demonstrating

that Rule 71 operates to confer jurisdiction in a matter in which a trial court has

lost jurisdiction, nor do they cite authority for the proposition that a trial court may

rely on Texas Rule of Civil Procedure 71 to create a new action after determining

that a pleading should have been but was not filed as such.

      We find more persuasive Kelsey’s reliance on Garcia v. Dagget. In that

case, the wife was murdered while the divorce action was pending. Garcia, 742

S.W.2d at 809.     The husband, who was charged with the murder, moved to

dismiss, and the child’s aunt and uncle filed a petition in intervention seeking

temporary conservatorship over the child. Id. The trial judge denied the motion to

dismiss and granted temporary managing conservatorship to the aunt and uncle.

Id.   The husband sought mandamus relief and we conditionally granted it,

instructing the trial court to dismiss. Id. We reasoned that because the wife’s

death immediately abated the divorce action, the trial court had no authority to

enter any order other than an order of dismissal. Id. (citing Rodriguez v. McFall,

658 S.W.2d 150, 152 (Tex. 1983)). We specifically noted that the aunt and uncle

in Garcia, like the Janners in this case, could have filed a separate suit seeking the




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same relief. 2 Id. at 809–10; see Smelscer v. Smelscer, 901 S.W.2d 708, 710 (Tex.

App.—El Paso 1995, no pet.) (“[T]he Garcia court contemplated a different result

if the intervenors had either previously filed an independent suit affecting the

parent-child relationship or if the trial court entered appropriate orders based on the

jurisdiction conferred upon it following the filing of a proper suit.”). In short, we

concluded that the trial court was required to dismiss due to the wife’s death, even

if the aunt and uncle could have brought a separate original proceeding seeking the

very relief they sought in the petition in intervention. See Garcia, 742 S.W.2d at

809–10.

      Likewise, here, the Janners claim that the trial court erred in dismissing their

petition in intervention rather than treating it as an original petition in a new suit

for grandparent access. However, as in Garcia, the fact that the Janners may have

had the right to file a separate proceeding for access does not alter the rule that,

after the death of a party to a divorce action, the divorce action terminates and the

trial court loses authority to enter any order other than an order of dismissal. Id. at

809; see also Pollard, 316 S.W.3d at 250–51 (citing Garcia); Smelscer, 901

S.W.2d at 710 (death of party to divorce caused abatement of action such that there

existed no underlying suit in which to intervene). Accordingly, we conclude that


2
      Section 102.004 of the Family Code confers standing upon relatives related to a
      child within the third degree by consanguinity to file suit for conservatorship
      under certain circumstances. See TEX. FAM. CODE ANN. § 102.004 (West 2008).
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the trial court, having lost authority to enter any order other than an order of

dismissal, correctly dismissed the suit, including the Janners’ petition in

intervention.

      We overrule the Janners’ sole issue.

                                   Conclusion

      We affirm the trial court’s judgment.


                                              Rebeca Huddle
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.




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