












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
                                        NO. 2-06-342-CV
 
IN
THE INTEREST OF                                                                            
 
 
C.A.P.,
JR. AND M.M.P., CHILDREN                                                       
 
                                              ------------
 
           FROM THE 233RD
DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                             OPINION
 
                                              ------------
I.  Introduction
Appellant
Cody Allen P., Sr. appeals from the trial court=s dismissal of his Petition to Modify Parent-Child Relationship from
Standard Possession to Extended Possession of the Children for failure to state
a cause of action.  In his sole issue,
appellant contends that the trial court erred by dismissing his petition
because, although section 153.317 of the Texas Family Code does not provide for
a separate cause of action for modification of a possession order, section
153.317 does not prohibit such an action either.  We affirm.
 




II. Background Facts and Procedural History
On November
2, 2000, the trial court entered an order appointing both appellant and
appellee, April Lynn K., as joint managing conservators of their two children,
C.A.P., Jr. and M.M.P., in an initial suit establishing the parent-child
relationship brought by appellee against appellant as the children=s alleged father.[1]  See  Tex. Fam. Code Ann. ' 152.102(8) (Vernon 2002). 
About five years later, the trial court heard appellee=s Suit to Modify the Parent-Child Relationship and to establish and
acquire past-due child support, clarify insurance and health care obligations,
increase the amount of child support appellant paid to her, and enter wage withholding.  The trial court granted appellee=s motion and entered a corresponding order on the same date, November
29, 2005. 







Two months
later, in January 2006, appellant filed a Petition to Modify Parent-Child
Relationship seeking an Extended Possession Order under section 153.317 of the
Texas Family Code.[2]  See id. ' 153.317 (Vernon Supp. 2006). 
Appellee filed an answer and special exceptions on March 6, 2006,
arguing that appellant failed to timely request extended possession under
section 153.317 because he should have requested it Abefore or at the time@ of the hearing two months earlier.[3]  Further, appellee asserted that there had
been no substantial and material change in circumstances since the modification
two months earlier that would justify further modification.  Appellant filed his First Amended Petition to
Modify Parent-Child Relationship on March 28, 2006, stating that a substantial
and material change in circumstances had occurred since the previous
modification because the children were older and were now both in school.[4]  Appellee filed her First Amended Original
Answer with special exceptions on June 27, 2006, maintaining the arguments
contained in her Original Answer.  The
trial court conducted a hearing, sustained appellee=s special exception number five, ruled appellee=s special exception number four moot, and ordered appellant to
replead.[5]  When appellant failed to replead, the trial
court struck appellant=s pleadings,
then granted a dismissal.
III. Texas Family Code Section 153.317




Appellant
contends that the trial court erred by dismissing his petition because a
possessory conservator can sue to modify a possession order from standard
visitation to extended visitation under family code section 153.317
independently of a suit to modify.  See
id.  Appellee responds that under
section 153.317, a possessory conservator must elect extended visitation Abefore or at the time of the rendition of the original or modification
order.@  Id.  Appellee contends that such an election is
also a compulsory counterclaim. 
Therefore, according to appellee, the trial court did not err by
dismissing appellant=s motion to
modify because a possessory conservator cannot bring an independent
cause of action to modify a possession order. 
Both parties request interpretation of section 153.317.
A. Standard of Review




This is an
issue of first impression.  Statutory
construction is a legal question that we review de novo, ascertaining and
giving effect to the legislature=s intent as expressed by the plain and common meaning of the statute=s words.  Tex. Gov=t Code Ann. ' 312.002 (Vernon 2005); F.F.P. Operating Partners, L.P. v. Duenez,
No. 02-0381, 2007 WL 1376357, at *2 (Tex. Nov. 30, 2005); Tex. Dep=t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). 
We begin with the statute=s plain language because we assume that the legislature tried to say
what it meant and, thus, that its words are the surest guide to its
intent.  Fitzgerald v. Advanced Spine
Fixation Sys., Inc., 996 S.W.2d 864, 865‑66 (Tex. 1999).  In ascertaining legislative intent, we do not
confine our review to isolated statutory words, phrases, or clauses, but we
instead examine the entire act.  Meritor Auto., Inc. v. Ruan Leasing Co.,
44 S.W.3d 86, 90 (Tex. 2001); Rodgers v. Comm=n for Lawyer Discipline, 151 S.W.3d
602, 614 (Tex. App.CFort Worth
2004, pet. denied).  We may also
consider, among other things, the statute=s objectives, common law, former law, and similar provisions, and the
consequences of the statutory construction. 
Tex. Gov=t Code Ann. ' 311.023(1)‑(7) (Vernon 2005).
It is a well‑settled
rule of statutory construction that every word of a statute must be presumed to
have been used for a purpose.  See
Quick v. City of Austin, 7 S.W.3d 109, 123 (Tex. 1998); Laidlaw Waste
Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995).  Likewise, every word excluded from a statute
must also be presumed to have been excluded for a purpose.  Quick, 7 S.W.3d at 123; Laidlaw
Waste Sys., Inc., 904 S.W.2d at 659.




Further, it
is well established in Texas that when provisions of the same statute may be in
conflict, courts should harmonize them to give effect to both by assigning each
a meaning that will permit each to stand. 
See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); Valero
Transmission Co. v. Hays Consol. ISD, 704 S.W.2d 857, 864 (Tex. App.CAustin 1985, writ ref=d n.r.e.).  A court should not
assign a meaning to a statutory provision that would be inconsistent with other
provisions of the same act, even though it might be susceptible to such a
construction standing alone.  See Tex.
Dep=t of Transp.
v. Needham, 82 S.W.3d 314, 318 (Tex. 2002); Clint
ISD v. Cash Invs., Inc., 970 S.W.2d 535, 539 (Tex. 1998).  Further, when a general statutory provision
conflicts with a more specific provision, Athe provisions shall be construed, if possible, so that effect is
given to both.@  Tex.
Gov=t Code Ann. ' 311.026(a).  If the conflict
between a general provision and a more specific provision is irreconcilable, Athe special or local provision prevails as an exception to the general
provision, unless the general provision is the later enactment and the manifest
intent is that the general provision prevail.@  Id. ' 311.026(b); City of Dallas v. Mitchell, 870 S.W.2d 21, 22
(Tex. 1994).
 
 
 
 
 
 
 
 
 
 
 




B. Analysis







Appellant
seeks guidance on whether sections 153.001,[6]
153.002,[7]
153.251,[8]
and 153.252[9]
of the family code take precedence over section 153.317 in situations in which
it is in the best interest of the child to extend visitation.  Applying the principles of statutory
construction, we conclude that sections 153.001, 153.002, 153.251, and 153.252
can be harmonized with section 153.317 to give effect to all sections.  After interpreting section 153.317 in light
of these sections and giving full effect to the extent possible to all
sections, we conclude and hold that section 153.317 requires trial courts to grant
extended visitation when section 153.317's conditions have been met, unless it
is not in the best interest of the child. 
See Duenez, 2007 WL 1376357, at *2; City of Sunset Valley,
146 S.W.3d at 642.
First, we
note that all of these provisions are contained within Chapter 153 of the Texas
Family Code entitled, AConservatorship,
Possession, and Access.@  Section 153.001 contains a general statement
regarding the public policy of the state in relation to conservatorship,
possession, and access to a child.  See
Tex. Fam. Code Ann. ' 153.001.  Section 153.002
requires the court to always put the child=s best interest first in matters of possession and access to the
child.  Id. ' 153.002.  Section 153.252
merely creates a rebuttable presumption that the standard possession order is
in the best interest of the child, and section 153.317 sets forth additional or
extended visitation that may be available to the possessory conservator of
school-age children.  See id. '' 153.252, 153.317. 




While
section 153.317 appears to conflict with sections 153.002 and 153.252,
section 153.252 merely provides that there is a rebuttable presumption that the
standard possession order is in the best interest of the child; section 153.002
provides that the best interest of the child shall always be the primary
consideration of the court in determining issues of conservatorship,
possession, and access.  See id. '' 153.002, 153.252.  We note that
section 153.317, which specifically enumerates the circumstances in which a
court must grant extended possession to a possessory conservator, does
not contain its own best interest requirement. 
See id. '
153.317.  However, section 153.317 is
contained within the same chapter as section 153.002 and is therefore governed
by the Ageneral provisions@ that clearly state that the public policies and best interest
standards are to be paramount.




Moreover,
section 153.317 provides that a possessory conservator is entitled to extended
visitation if (1) the child is enrolled in school, (2) the possessory
conservator asks for extended visitation, and (3) the possessory conservator
does so either before or at the time of rendition of the original
or modification order.[10]  See id.  By expressly stating in section 153.317 that
a possessory conservator is entitled to extended visitation if he asks for it before
or at the time of the rendition of the original or modification order,
we must assume that the exclusion of the time period after the rendition
of the original or modification order was intentional on the part of the
legislature.  See Tex. Gov=t Code Ann. ' 312.002; Quick, 7 S.W.3d at 123; Laidlaw Waste Sys., Inc.,
904 S.W.2d at 659.  Thus, the legislature
purposefully limited the application of section 153.317 to extended visitation
requests occurring before or at the time of rendition of the
original or a subsequent modification order. 
See Quick, 7 S.W.3d at 123; Laidlaw Waste Sys., Inc., 904
S.W.2d at 659.  In doing so, the
legislature ensured that the best interest of the child would be considered by
the court when granting requests for extended possession under section 153.317
because the court is already considering the best interest of the child at
possessory and modification  hearings.  See  Tex. Fam. Code Ann. ' 153.002; In re R.T.H., 175 S.W.3d 519, 522 (Tex. App.CFort Worth 2005, no pet.) (stating that best interest of child must
always be trial court=s primary
concern at modification hearing). 
Because the
best interest of the child is already a consideration of the trial court at
modification hearings, and because conclusions regarding extended visitation
are made at these hearings, we conclude and hold that if a court determines
extended visitation to be in a child=s best interest, and the applicant has met the statutory prerequisites
under section 153.317, then applicant should be entitled to extended
visitation.  We turn to these
requirements now.




Because of
our interpretation, we do not agree with appellant that a possessory
conservator can bring an independent cause of action seeking extended
visitation under section 153.317. 
Instead, we conclude that section 153.317 permits a possessory
conservator to seek alternative, extended visitation times before or at
the time of rendition of an original or subsequent modification order; the
language itself presupposes an action is still pending.  If a possessory conservator fails to ask for
extended visitation under section 153.317 until after the modification order is
issued, then the request is untimely by virtue of the statute itself.  Generally, a possessory conservator may seek
a modification of a possession order under section 156.101 only when
modification is otherwise justified under one of the three enumerated grounds:
(1) the circumstances of the child or other party affected by the order have
materially and substantially changed; (2) the child is at least twelve years
old and wishes to change his or her primary residence; or (3) the conservator
who has the exclusive right to designate the primary residence of the child has
voluntarily relinquished the primary care and possession of the child to
another person for at least six months.  See
Tex. Fam. Code Ann. ' 156.101 (Vernon Supp. 2006). 
Thus, we conclude and hold that a request for extended visitation must
be requested before or at a hearing on a modification request that meets these
statutory prerequisites as well.
Here,
appellant=s First
Amended Petition to Modify Parent-Child Relationship is an insufficient attempt
to comply with section 156.101(1). 
Appellant pled that the children=s circumstances have materially and substantially changed since the
November 29, 2005 modification order because 
 




[t]he children are older and
have reached a maturity level where it is no longer necessary for them to be
under the constant supervision of their mother. 
[C.A.P., Jr.] is age 7 and in the second grade and [M.M.P.] is age 5 and
in kindergarten.
 
Appellant=s pleading
was filed on March 28, 2006, only four months after the November 2005
modification order was entered and during the same school year.  In order words, when the November 2005
modification order was entered, the children were in school and in the same
grades (second grade and kindergarten) as they were when appellant=s amended petition to modify was filed.  Further, appellant=s pleading states that the children=s birthdays are in September and October; therefore, they were the
same ages in March 2006 as they were when the November 2005 order was entered:
seven and five.  Accordingly, on its
face, appellant=s First
Amended Petition to Modify Parent-Child Relationship fails to state a cause of
actionCi.e., a claim for modification for possession under section 156.101
due to changed circumstances.  See id.
 When appellant failed to replead
after being given an opportunity to do so, the trial court properly dismissed
the petition.







Regardless, we do not agree with appellee=s assertion that a request for extended visitation under section
153.317 is a compulsory counterclaim.[11]  Section 153.317 permits a possessory
conservator to ask for extended visitation before or at the time of the
rendition of the original or a modified order.  Id. ' 153.317.  If a claim under
section 153.317 for extended visitation were compulsory, a possessory
conservator would be barred from bringing it at the time of rendition or from
ever bringing it after the rendition of the original order.  See Tex.
R. Civ. P. 63; Weiman v. Addicks-Fairbanks Road Sand Co., 846
S.W.2d 414, 418 (Tex. App.CHouston [14th Dist.] 1992, writ denied) (stating that if a claim is
brought against a party and that party shows that the claim was a compulsory
counterclaim against him or her in a prior suit between the parties, the claim
is precluded). The statute clearly allows a possessory conservator to ask for
extended visitation before or at the original hearing or before or at
any subsequent modification hearing.  See
Tex. Fam. Code Ann. ' 153.317.  Therefore, we
conclude and hold that a claim for extended visitation is not a compulsory
counterclaim in the traditional sense. 
Regardless, appellant failed to ask for extended possession under
section 153.317 either before or at the time of rendition of the
modification order; he sought extended possession after the rendition of
the original and modification order. 
Therefore, appellant did not fulfill the requirements for extended
possession under section 153.317.  Thus,
we conclude that the trial court correctly dismissed appellant=s petition.
IV. Conclusion
Because appellant failed to timely request extended visitation before
or at the time of rendition of the original or modification order under
section 153.317, the trial court did not err by dismissing appellant=s Petition to Modify Parent-Child Relationship from Standard
Possession to Extended Possession of the Children.  Accordingly, we overrule appellant=s sole point and affirm the trial court=s judgment. 
 
 
TERRIE
LIVINGSTON
JUSTICE
 
PANEL B:   LIVINGSTON, WALKER, and MCCOY, JJ.
 
DELIVERED: August 16, 2007




[1]Joint
managing conservators share the rights and duties of a parent, even if the
exclusive right to make certain decisions may be awarded to one party.  Tex.
Fam. Code Ann. '
101.016 (Vernon 2002).


[2]Under
the standard possession order, appellant=s period of possession began
at 6:00 p.m. on the first, third, and fifth Fridays of each month and ended at
6:00 p.m. on the following Sunday. 
Appellant was seeking to begin his period of possession at the time the
children=s
school was regularly dismissed rather than at 6:00 p.m.  Appellant also sought possession of the
children on Thursday nights starting when the children=s
school regularly dismissed and ending when school resumed Friday morning.  There is nothing in the record showing that
appellant=s
summer visitation time with the children would have been adjusted.


[3]Section
153.317 provides as follows:
 
If a child is enrolled in
school and the possessory conservator elects before or at the time of the
rendition of the original or modification order, the standard order must
expressly provide that the possessory conservator=s
period of possession shall begin or end, or both, at a different time expressly
set in the standard order under and within the range of alternative times
provided by one or both of the following subdivisions:
 
(1) instead of a period of
possession by a possessory conservator beginning at 6 p.m. on the day school
recesses, the period of possession may be set in the standard possession order
to begin at the time the child=s school is regularly
dismissed or at any time between the time the child=s
school is regularly dismissed and 6 p.m.; and
(2) except for Thursday
evening possession, instead of a period of possession by a possessory
conservator ending at 6 p.m. on the day before school resumes, the period of
possession may be set in the standard order to end at the time school resumes.
 
Tex.
Fam. Code Ann '
153.317 (emphasis added).


[4]It is
unclear from the record exactly why appellant wanted extended visitation or
when the children started school.


[5]Appellee=s
special exception number four stated that appellant failed to establish that
there had been a material and substantial change in circumstances since the
last modification order.  Appellee=s
special exception number five stated that section 153.317 does not provide for
a separate cause of action for modification of a possession schedule.


[6]Section
153.001 provides as follows:
(a) The public policy of this
state is to:
(1)
assure that children will have frequent and continuing contact with parents who
have shown the ability to act in the best interest of the child;
        (2) provide a safe, stable, and
nonviolent environment for the child; and
(3) encourage parents
to share in the rights and duties of raising their child after the parents have
separated or dissolved their marriage.
(b) A court may not render an
order that conditions the right of a conservator to possession of access to a
child on the payment of child support.
Tex.
Fam. Code Ann. ' 153.001 (Vernon 2002).


[7]Section
153.002 provides, AThe
best interest of the child shall always be the primary consideration of the
court in determining the issues of conservatorship and possession of and access
to the child.@  Id. '
153.002.


[8]Section 153.251
provides as follows:
(a) The guidelines
established in the standard possession order are intended to guide the courts
in ordering the terms and conditions for possession of a child by a parent
named as a possessory conservator or as the minimum possession for a joint
managing conservator.
(b)
It is the policy of this state to encourage frequent contact between a child
and each parent for periods of possession that optimize the development of a
close and continuing relationship between each parent and child.
(c)
It is preferable for all children in a family to be together during periods of
possession.
(d)
The standard possession order is designed to apply to a child three years of
age or older.
Id. '
153.251.


[9]Section
153.252 provides as follows:
 
In a suit, there is a
rebuttable presumption that the standard possession order in Subchapter F: 
        (1) provides reasonable minimum
possession of a child for a parent named as a possessory conservator or joint
managing conservator; and
(2) is in the best
interest of the child.
 
Id. '
153.252.


[10]When
analyzing the words of a statute to ascertain legislative intent, we give the
words their ordinary meaning.  Tex. Gov=t Code Ann. '
312.002.


[11]There
are six elements to a compulsory counterclaim: (1) the claim must arise from
the same transaction or occurrence as gave rise to the main cause of action;
(2) the claim must be mature and owned by the counter claimant; (3) the claim
must be against an opposing party in the same capacity; (4) the claim must not
require a third party who cannot be brought into the suit; (5) the claim must
be within the court=s
jurisdiction; and (6) the claim must not be pending elsewhere.  Tex.
R. Civ. P. 97(a).


