Opinion issued February 5, 2015




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-13-01077-CV
                          ———————————
  KATHERINE R. WARREN, AS NEXT FRIEND OF M.H.W., A MINOR,
      BENEFICIARY OF THE M.H.W. 2000 TRUST, Appellant
                                      V.
  ANDY I. WEINER, TRUSTEE OF THE M.H.W. 2000 TRUST, Appellee


                  On Appeal from the Probate Court No. 4
                          Harris County, Texas
                       Trial Court Case No. 425578


                                OPINION

     In probate court, Katherine Warren petitioned to modify a trust, granted for

the benefit of her minor son. The probate court dismissed her suit for lack of

subject matter jurisdiction because the trustee parents are divorced and their

obligations to each other and their children were defined in family law
proceedings. Because the probate court had jurisdiction over Warren’s claims, we

reverse.

                                     Background

      In 1999, husband and wife Andy Weiner and Katherine Warren had their

third son, M.H.W. The next year, they created an irrevocable trust, calling it the

M.H.W. 2000 Trust, for M.H.W.’s benefit. They named themselves as co-trustees.

      Weiner and Warren divorced in 2012.           Their divorce decree in part

addressed the M.H.W. 2000 Trust and similar trusts Weiner and Warren had

created for their other children, as follows:

      IT IS ORDERED that the following children’s trusts are held in
      irrevocable trusts, which shall continue as written, and that each party
      will take any and all necessary steps to provide full co-trustee
      ownership and control of each such account including the placing of
      such accounts in a deposit and withdrawal agreement requiring both
      co-trustees to disburse funds . . . .

Since their divorce, Weiner and Warren have disagreed over various aspects of the

management of the children’s trusts; each has accused the other of violating the

trusts’ terms.

      In August 2013, Weiner petitioned in family court for a modification of the

parent–child relationship between Weiner and two of his children; by then, the

third child had attained the age of majority. A month later, Warren commenced

this action in probate court, requesting that the M.H.W. 2000 Trust be terminated

and the trust estate distributed to a Uniform Transfers to Minors Act account, with


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Warren as its sole custodian. Alternatively, she asked the probate court to remove

Warren and Weiner as trustees and appoint an independent trustee. She filed her

original petition in her capacity as co-trustee of the M.H.W. 2000 Trust, but later

amended her petition to assert claims only as next friend for M.H.W.

       In response, Weiner amended his petition in the family court case to request

that the family court appoint him the exclusive manager of the children’s estates,

including their trusts. He also filed a plea to the jurisdiction, a plea in abatement,

and an answer in the probate court proceeding. Weiner argued that the probate

court lacked subject-matter jurisdiction over Warren’s suit because the family

court has continuing, exclusive jurisdiction over Warren’s claims.            In the

alternative, he argued that the probate proceeding should be abated until the family

court ruled on his petition to modify his parent–child relationship with his minor

sons. The probate court granted the jurisdictional plea, and Warren appeals from

its order.

       Standard of Review

       “Whether a court has subject matter jurisdiction is a question of law that we

review de novo.” City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010);

see also Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex.

2011). In reviewing a trial court’s order on a plea to the jurisdiction, we examine

only the plaintiff’s pleadings and the evidence pertinent to the jurisdictional



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inquiry. State v. Holland, 221 S.W.3d 639, 642–43 (Tex. 2007) (citing Tex. Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004)). We

construe the pleadings liberally in favor of the plaintiff. Id.

      “[T]he interpretation of a statute [is] a matter of law,” which we review de

novo. Enter. Leasing Co. of Hous. v. Harris Cnty. Toll Rd. Auth., 356 S.W.3d 85,

89 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also State v. Heal, 917

S.W.2d 6, 9 (Tex. 1996).

      Applicable Law

      The Texas Family Code confers continuing, exclusive jurisdiction in the

family courts over matters relating to the parent–child relationship. TEX. FAM.

CODE ANN. § 155.001(a) (West 2012) (“Except as otherwise provided by this

section, a court acquires continuing, exclusive jurisdiction over the matters

provided for by this title in connection with a child on the rendition of a final

order.”). A family court’s jurisdiction remains exclusive over related later-filed

proceedings: “If a court of this state has acquired continuing, exclusive

jurisdiction, no other court of this state has jurisdiction of a suit with regard to that

child,” with exceptions not relevant here. Id. § 155.001(c). Section 101.032 of the

Family Code provides that a suit affecting the parent–child relationship is a suit “in

which the appointment of a managing conservator or a possessory conservator,

access to or support of a child, or establishment or termination of the parent–child



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relationship is requested.”    TEX. FAM. CODE ANN. § 101.032; see Chalu v.

Shamala, 125 S.W.3d 737, 738 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

      In contrast, trusts are regulated by the Estates Code. “In a county in which

there is a statutory probate court, the statutory probate court has jurisdiction of:

(1) an action by or against a trustee; [and] (2) an action involving an inter vivos

trust, testamentary trust, or charitable trust . . . .” TEX. EST. CODE ANN. § 32.006

(West Supp. 2014). “A statutory probate court has concurrent jurisdiction with the

district court in: . . . (2) an action by or against a trustee; [or] (3) an action

involving an inter vivos trust . . . .” Id. § 32.007 (West Supp. 2014).

      Exclusive Jurisdiction

      Thus, the administration of an inter vivos trust like this one generally is a

matter within the jurisdiction of a probate court. Id. The issue before us is

whether the family court obtained exclusive jurisdiction over the management of

the M.H.W. 2000 Trust pursuant to the provisions of the 2012 divorce decree. We

conclude that it did not. Although the Family Code confers continuing, exclusive

jurisdiction upon a family court “over the matters provided for [in the statute] in

connection with a child on the rendition of a final order,” that jurisdiction is

exclusive only insofar as the Family Code is implicated. See TEX. FAM. CODE

ANN. § 155.001(a).




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      The fact that Weiner and Warren agreed to the terms of the divorce decree,

which provided that the trusts would “continue as written,” does not deprive the

probate court of subject-matter jurisdiction. Parties may neither confer nor waive

jurisdiction by agreement. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d

440, 445–46 (Tex. 1993).        Nor does the divorce decree purport to govern

administration of the trust. Instead, the decree expressly acknowledges that the

trust agreement governs, and requires the parent to continue to seek appointment as

co-trustees.

      Weiner suggests that the administration of the trust is a child-support issue

and thus a dispute about it falls within the exclusive jurisdiction of the family

court. We disagree. Although the trust was created for M.H.W.’s benefit, nothing

in either the trust agreement or in the divorce decree provides that the trust is to be

used as child support.      Neither the trust nor the decree requires any trust

distributions before M.H.W. reaches the age of 30.

      Both parties rely on Barrientos v. Nava, 94 S.W.3d 270 (Tex. App.—

Houston [14th Dist.] 2002, no pet.), in which our sister court considered whether

the family court had continuing, exclusive jurisdiction over a suit to recover the

benefits of life insurance policies. 94 S.W.3d at 275–76. The Barrientos court held

that the family court had jurisdiction over the mother’s suit against the children’s

grandmother because the life insurance policies replaced child support that was lost



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when the father violated the divorce decree. Id. at 278. The court further held that

that judicial economy and practical considerations made it appropriate for the

family court to hear additional claims indirectly related to the support obligation.

Id. at 279. “As a court of general jurisdiction in which family matters merely take

precedence, the family district court was clearly permitted to hear and decide the

trust issues in [the] case.” Id. Nothing in Barrientos suggests that the family court

had exclusive jurisdiction over claims involving funds not designated as child

support; rather, the court held that the family court had general jurisdiction to hear

such claims.

      The trust instrument, not the divorce decree, governs the administration of

the trust’s assets; a modification to the terms of the trust is not a child-support

matter exclusive to the family court’s jurisdiction. Because the administration of

the M.H.W. 2000 Trust is not a child-support matter as the Family Code defines it,

the probate court had jurisdiction to hear the dispute. Compare TEX. FAM. CODE

ANN. §§ 155.001(a) (scope of family court’s exclusive jurisdiction), 155.003(a)

(exercise of that jurisdiction) with TEX. EST. CODE ANN. §§ 32.006 (scope of

probate court’s jurisdiction), 32.007 (scope of concurrent jurisdiction of probate

and district courts).




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      Dominant Jurisdiction

      The trial court’s order did not abate this suit in favor of the family court.

Instead, the court granted the plea to the jurisdiction and dismissed Warren’s

claims. “The general common law rule in Texas is that the court in which suit is

first filed acquires dominant jurisdiction to the exclusion of other coordinate

courts.” Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). “Any subsequent suit

involving the same parties and the same controversy must be dismissed if a party

to that suit calls the second court’s attention to the pendency of the prior suit by a

plea in abatement.” Id. To obtain a dismissal of the probate suit on the basis that

the family court had acquired dominant jurisdiction, Weiner must show that (1) the

family court proceeding commenced first, (2) that suit is still pending, (3) the same

parties are involved, and (4) the controversies are the same. In re Sims, 88 S.W.3d

297, 303 (Tex. App.—San Antonio, orig. proceeding); see also Wyatt v. Shaw

Plumbing Co., 760 S.W.2d 245, 247–48 (Tex. 1988). “It is not required that the

exact issues and all the parties be included in the first action before the second is

filed, provided that the claim in the first suit may be amended to bring in all

necessary and proper parties and issues.” Wyatt, 760 S.W.2d at 247. The test is

whether there is an inherent interrelation of the subject matter in the two suits. Id.;

see also Dallas Fire Ins. Co. v. Davis, 893 S.W.2d 288, 292 (Tex. App.—Fort

Worth 1995, orig. proceeding).



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      In urging that we abate the probate proceeding, Weiner argues that the

probate claims relate back to the original divorce proceeding under Section 16.068

of the Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.068 (West 2012). But a pleading does not relate back if “the amendment or

supplement is wholly based on a new, distinct, or different transaction or

occurrence.” Id. The parties’ trust-management claims do not relate back to the

original family court petition under Section 16.068 because they arose post-

divorce. Nor did M.H.W. appear as a party, as required by law in a suit concerning

a trust. See TEX. PROP. CODE ANN. § 115.011 (West 2012) (beneficiary of trust is

necessary party to proceeding concerning trust, including proceeding to appoint or

remove trustee).

      In contrast to this probate court proceeding, the family court suit was a

divorce proceeding between Weiner and Warren in their individual capacities and a

suit affecting the parent-child relationship under the Family Code. The children

and the trusts were not parties to the divorce, nor did Weiner and Warren appear in

their capacities as co-trustees or as next friends of M.H.W. While the family court

appointed an amicus attorney to protect the interests of M.H.W. and another of the

children, the amicus did not represent M.H.W. Rather, the role of amicus attorney

“is to provide legal services necessary to assist the court in protecting a child’s best




                                           9
interests rather than to provide legal services to the child.” TEX. FAM. CODE ANN.

§ 107.001(1) (West 2012).

      Nor does Weiner’s amended petition in family court relate back to his

original petition. The original petition made no mention of the trust-administration

dispute, and it was only after Warren filed suit in family court over that dispute

that Weiner asserted claims related to administration of the trusts. The two suits

were not so inherently interrelated as to confer dominant jurisdiction over the trust

claims on the family court. See Wyatt, 760 S.W.2d at 247; Dallas Fire Ins., 893

S.W.2d at 292.

      Given these differences between the family court and probate court

proceedings, Weiner did not meet his burden to demonstrate facts sufficient to

support his plea in abatement and dismissal. Accordingly, the probate court erred

in dismissing Warren’s suit on the basis of a pending proceeding in which another

court already had acquired dominant jurisdiction.*

                                     Conclusion

      Because the Probate Code, and not the Family Code, governs administration

of the M.H.W. 2000 Trust, we hold that a suit regarding the management and

proposed dissolution of the trust does not fall within the exclusive jurisdiction of

*
      We express no opinion on whether the probate court could have stayed, rather than
      dismissed, the probate court proceeding pending resolution of the family court suit
      regarding whether Weiner or Warren have violated the divorce decree in their
      administration of the trust.

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the family court. We reverse the order of dismissal and remand the case to the

probate court for further proceedings.




                                              Jane Bland
                                              Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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