Reversed and Remanded and Memorandum Opinion filed October 30, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00785-CV


      IN THE INTEREST OF ZACHARY CARDIFF SISK, AN ADULT
                       DISABLED CHILD


                    On Appeal from the 257th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-56772


                 MEMORANDUM                      OPINION

      Zachary Cardiff Sisk is the disabled adult son of appellees Leslee Cardiff
Sisk and Wallace T. Sisk. Zachary filed a petition for child support, which the trial
court dismissed. We reverse and remand.

                                   BACKGROUND

      Leslee Cardiff Sisk and Wallace T. Sisk were divorced on December 29,
2008, pursuant to a final decree of divorce signed by the 257th Judicial District
Court of Harris County, Texas. At the time of the divorce, Zachary was 25 years
old. The divorce decree states, “The Court finds that there is no child to the
marriage . . . now under eighteen years of age or otherwise entitled to support and
that none is expected.”

      Zachary filed a petition for child support nearly four years later on
September 27, 2012. See Tex. Fam. Code Ann. §§ 154.301-.309 (Vernon 2014).
His petition asserts that he is disabled and unable to support himself. He requests
that the court order his parents to pay for his support.

      Zachary’s parents filed separate answers to his petition. Each asserted that
Zachary lacked standing to sue, along with affirmative defenses. The parents then
filed a “joint motion to dismiss.” Their motion stated, in its entirety:

      Now comes [sic] LESLEE CARDIFF SISK and WALLACE T. SISK
      requesting the Court to rule on their pleadings to dismiss the pending
      case as set forth in their verified pleadings including, but not limited
      to, statute of limitations, laches and estoppel.

The trial court held a hearing on the parents’ motion and dismissed the case.

      At the hearing, the parents argued their affirmative defenses and referenced
evidence outside the record. The trial court asserted that it had no jurisdiction over
the case because the court’s plenary power to alter the divorce decree had expired
30 days after the decree was signed in 2008. The court concluded that it lacked
jurisdiction because the divorce decree contained a finding that there was no child
to the marriage entitled to support, and because the divorce decree could not be
amended. The trial court issued findings of fact and conclusions of law. The trial
court signed an order dismissing Zachary’s suit on June 7, 2013, and Zachary
timely appealed.

                                      ANALYSIS

      The trial court’s findings of fact and conclusions of law identified two bases
for dismissal: (1) lack of subject matter jurisdiction; and (2) the affirmative defense

                                           2
of limitations. We address each in turn.

I.     The Trial Court Has Subject Matter Jurisdiction

       We review the record in this case to determine whether the trial court lacked
subject matter jurisdiction so as to require its dismissal. See Lacy v. Bassett, 132
S.W.3d 119, 122 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (“[Defendant’s]
motion to dismiss is the functional equivalent of a plea to the jurisdiction.”).
Subject matter jurisdiction is essential to the authority of a court to decide a case; it
is never presumed and cannot be waived. Tex. Ass’n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 444 (Tex. 1993). A trial court must dismiss if it determines
that it is without subject matter jurisdiction to act. Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 554 (Tex. 2000).

       The trial court dismissed the case after determining that it did not have
plenary power to modify the divorce decree that dissolved the marriage of
Zachary’s parents. Generally, a trial court may correct or revise a judgment only
during the period of its plenary power, which exists within 30 days after the
judgment is signed unless extended by motion. See Tex. R. Civ. P. 329b; Smalley
v. Smalley, 436 S.W.3d 801, 806 (Tex. App.—Houston [14th Dist.] 2014, no pet.);
see also DeGroot v. DeGroot, 260 S.W.3d 658, 662 (Tex. App.—Dallas 2008, no
pet.) (plenary power is limited to a maximum of one hundred and five days). Once
the trial court’s plenary power ends, the court loses subject matter jurisdiction and
has limited power to set the judgment aside. Smalley, 436 S.W.3d at 806.1

       We conclude that the trial court’s dismissal of Zachary’s case was error
because this case is a separate proceeding from the divorce proceeding; therefore,

       1
           A court may set the judgment aside after its plenary power ends through an equitable
bill of review or if allowed by statute. See Smalley, 436 S.W.3d at 806. Zachary did not file a
bill of review.

                                              3
the trial court’s plenary power in the divorce proceeding does not determine its
jurisdiction over this case.2

       A.      The Divorce Proceeding Did Not Bring Zachary under the
               Court’s Jurisdiction

       The marriage of Zachary’s parents was dissolved on December 29, 2008, by
an agreed final decree of divorce signed by the trial court in Cause No. 2008-
40931; the matter was styled “In the Matter of the Marriage of Wallace Truett Sisk,
Jr. and Leslee Janet Cardiff Sisk.” In the matter currently being appealed, the trial
court determined that Cause No. 2008-40931 included a suit affecting the parent-
child relationship and was a final determination denying Zachary child support.
The trial court considered Zachary’s suit to be an untimely request to modify the
divorce decree.

       A “suit affecting the parent-child relationship” or SAPCR is defined by the
Family Code to mean a suit filed pursuant to the code “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 relationship is requested.”
Tex. Fam. Code Ann. § 101.032 (Vernon 2014). A SAPCR petition and all other
documents filed in a SAPCR case must be styled “In the interest of ________, a
child.” Id. § 102.008(a) (Vernon 2014). The final order must contain the social
security number and driver’s license number of each party to the suit, including the
child’s social security number and driver’s license number. Id. § 105.006(a)(1)
(Vernon 2014).


       2
          To the extent the trial court also based dismissal on an affirmative defense, such as
limitations, dismissal was in error because an affirmative defense, even if established, could not
deprive the court of subject matter jurisdiction. See In re K.M.T., 415 S.W.3d 573, 575 (Tex.
App.—Texarkana 2013, no pet.) (an affirmative defense does not affect a trial court’s subject
matter jurisdiction).

                                                4
      A petition for the dissolution of a marriage must include a SAPCR if the
parties are parents of a child. Id. § 6.406(b) (Vernon 2006); see also Diaz v. Diaz,
126 S.W.3d 705, 707 (Tex. App.—Corpus Christi 2004, no pet.) (“A divorce case
involving children of the marriage is actually two separate lawsuits.”). “In the
context of child support, ‘child’ includes a person over 18 years of age for whom a
person may be obligated to pay child support.” Tex. Fam. Code Ann. § 101.003
(Vernon 2014). A trial court obtains continuing, exclusive jurisdiction over a child
in connection with a SAPCR once it renders a final order. See Tex. Fam. Code
Ann. § 155.001 (Vernon 2014). The court of continuing, exclusive jurisdiction
may exercise its jurisdiction to modify a child support order. Tex. Fam. Code.
Ann. § 155.003 (Vernon 2014).

      Nothing in the divorce decree indicates that Cause No. 2008-40931 included
a SAPCR despite Zachary’s contention that he is a child of the marriage entitled to
support. The divorce proceeding is not styled “In the interest of Zachary Cardiff
Sisk, a child.” See Tex. Fam. Code Ann. § 102.008(a). The divorce decree does
not contain Zachary’s and his parents’ social security numbers or driver’s license
numbers. See id. § 105.006(a)(1). Moreover, the divorce decree does not suggest
that the court considered whether Zachary may be a child of the marriage entitled
to support, and, if so, a required party to the divorce. See Tex. Fam. Code. Ann. §
6.406(b). The divorce decree states that it is “agreed.” It is signed by Zachary’s
parents, not Zachary. The decree states, “The Court finds that there is no child to
the marriage . . . now under eighteen years of age or otherwise entitled to support
and that none is expected.” This statement tracks language in the Family Code
required for a divorce petition. See id. § 6.406(a) (Vernon 2006) (“The petition in
a suit for dissolution of a marriage shall state whether there are children born or
adopted of the marriage who are under 18 years of age or who are otherwise


                                         5
entitled to support as provided by Chapter 154.”).3

       We conclude, after reviewing the divorce decree, that the divorce proceeding
did not include a SAPCR and that the trial court did not consider whether Zachary
may be a child of the marriage entitled to support. Cf. Espiricueta v. Vargas, 820
S.W.2d 17, 19 (Tex. App.—Austin 1991, writ denied) (recitations in a divorce
decree that a child was born during the marriage does not establish paternity when
the issue of paternity was not raised in the divorce pleadings and was not an issue
in the divorce).

       It follows that the trial court did not obtain continuing, exclusive jurisdiction
over Zachary in Cause No. 2008-40931 because the suit was not a SAPCR, and
because the court did not consider whether Zachary might be a child entitled to
support. See Tex. Fam. Code Ann. §§ 101.032; 155.001; cf. Dunker v. Dunker,
659 S.W.2d 106, 108 (Tex. App.—Houston [14th Dist.] 1983, no writ) (“Once a
child is brought under the court’s jurisdiction, by suit and pleading cast in terms of
custody and control, it becomes the duty of the court . . . to make proper
disposition of all [SAPCR] matters.”).

       B.     Zachary Filed an Independent Lawsuit within the Trial Court’s
              Jurisdiction

       Zachary filed a freestanding lawsuit under section 154.305 of the Texas
Family Code as an adult to initiate a suit for support; this provision allows him to
do so regardless of age and as an independent cause “if no court has continuing,
       3
          The supplemental clerk’s record includes a copy of the original petition for divorce in
Cause No. 2008-40931. The petition states, “There is no child under eighteen years of age or
otherwise entitled to support who was born or adopted of this marriage, and none is expected.”
The clerk’s record does not include all of the pleadings from Cause No. 2008-40931; therefore,
we cannot determine if the petition was amended or its allegations were denied. Nevertheless,
the petition shows that Cause No. 2008-40931 did not include a SAPCR when originally filed.
See Tex. Fam. Code. Ann. § 6.406(a); see also id. § 102.008 (listing the SAPCR petition
requirements).

                                               6
exclusive jurisdiction of the child.” Tex. Fam. Code. Ann. § 154.305 (Vernon
2014). The prior divorce proceeding in Cause No. 2008-40931 did not bring
Zachary within the trial court’s jurisdiction and did not establish continuing,
exclusive jurisdiction over Zachary. Consequently, Zachary’s suit is independent
of Cause No. 2008-40931; it is not a suit to modify the divorce decree. See Tex.
Fam. Code Ann. §§ 154.305; 155.003.

      The trial court may exercise jurisdiction over Zachary’s suit as a court of
general jurisdiction. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.
2000) (“A Texas district court . . . is a court of general jurisdiction.”). The trial
court’s plenary power in Cause No. 2008-40931 does not determine the court’s
jurisdiction to address Zachary’s freestanding suit under section 154.305. See Tex.
R. Civ. P. 329b. The affirmative defenses asserted by Zachary’s parents also do
not deprive the court of jurisdiction. See In re K.M.T., 415 S.W.3d 573, 575 (Tex.
App.—Texarkana 2013, no pet.). We conclude that the trial court has jurisdiction
over Zachary’s case. See Dubai Petroleum Co., 12 S.W.3d at 75.

      On this record, we conclude that the trial court’s dismissal order was
erroneous insofar as it was predicated on an asserted lack of subject matter
jurisdiction.

II.   The Parents’ Motion to Dismiss is Not Recognized by the Texas Rules of
      Civil Procedure or the Texas Family Code

      Zachary’s parents filed a “joint motion to dismiss.” They did not identify
the procedures or standards they were invoking.        Their motion stated, in its
entirety:

      Now comes [sic] LESLEE CARDIFF SISK and WALLACE T. SISK
      requesting the Court to rule on their pleadings to dismiss the pending
      case as set forth in their verified pleadings including, but not limited
      to, statute of limitations, laches and estoppel.

                                         7
The Texas Rules of Civil Procedure do not provide for a defendant’s motion to
dismiss in cases brought under the Texas Family Code, except for want of
prosecution or lack of jurisdiction. See Tex. R. Civ. P. 91a (motions to dismiss
authorized “[e]xcept in a case brought under the Family Code”); see also Tex. R.
Civ. P. 162 (plaintiff may dismiss); Tex. R. Civ. P. 165a (authorizing dismissal for
want of prosecution); Tex. Family Code Ann. § 155.102 (Vernon 2014) (requiring
dismissal if the court determines that another court has “continuing, exclusive
jurisdiction” of the child that is the subject of the suit); In re D.K.M., 242 S.W.3d
863, 865 (Tex. App.—Austin 2007, no pet.).4

       The statute of limitations, laches, and estoppel are affirmative defenses. See
Tex. R. Civ. P. 94; In re D.K.M., 242 S.W.3d at 865. Affirmative defenses should
be raised through a motion for summary judgment or at trial, not a motion to
dismiss or a plea to the jurisdiction. See In re D.K.M., 242 S.W.3d at 885-86
(reversing a trial court’s order of dismissal based on limitations and remanding for
proceedings in compliance with the Texas Rules of Civil Procedure); In re K.M.T.,
415 S.W.3d at 576 (affirming the trial court’s dismissal of a paternity suit on
limitations, but construing the trial court’s “pretrial” jurisdictional hearing as an
agreed separate trial on limitations); Tex. Underground, Inc. v. Tex. Workforce
Comm’n, 335 S.W.3d 670, 676 (Tex. App.—Dallas 2011, no pet.) (reversing
dismissal on limitations where the trial court did not follow summary judgment
procedure); see also Univ. of Hous. v. Elthon, 9 S.W.3d 351, 356 (Tex. App.—
Houston [14th Dist.] 1999, pet. dism’d w.o.j.) (“Affirmative defenses are pleas in

       4
         A defendant also may file a motion to dismiss if the defendant first files special
exceptions. See In re D.K.M., 242 S.W.3d at 865 n.1; Fort Bend Cnty. v. Wilson, 825 S.W.2d
251, 253 Tex. App.—Houston [14th Dist.] 1992, no writ) (“Under the Texas Rules of Civil
Procedure, a special exception is the appropriate vehicle for urging that the plaintiff has failed to
plead a cause of action, and the pleader must be given, as a matter of right, an opportunity to
amend the pleading.”). Zachary’s parents did not file special exceptions.

                                                 8
bar, and do not provide a justification for summary dismissal on the pleadings.”).

      We cannot determine the procedural basis Zachary’s parents invoked to seek
dismissal. The parents did not state the specific grounds for dismissal in their
“motion to dismiss;” instead, they referenced their pleadings and the affirmative
defenses of limitations, laches, and estoppel.        Zachary’s parents did not file
affidavits or evidence with their motion. The trial court issued findings of fact and
conclusions of law; this circumstance indicates that the parent’s motion to dismiss
was not a misnamed motion for summary judgment. See Linwood v. NCNB Tex.,
885 S.W.2d 102, 103 (Tex. 1994) (“[F]indings of fact and conclusions of law have
no place in a summary judgment proceeding.”); cf. Martin v. Dosohs I, Ltd., 2
S.W.3d 350, 355 (Tex. App.—San Antonio 1999, pet. denied) (evaluating a trial
court’s dismissal of a case on a “motion to dismiss” as if the trial court granted
summary judgment and affirming dismissal because the defendant satisfied the
notice requirements and its burden of proof under Rule 166a).

      To the extent the trial court considered the parents’ “motion to dismiss” to
determine anything other than its subject matter jurisdiction, it did so in error; the
parents’ motion was not recognized under the Texas Rules of Civil Procedure or
the Texas Family Code. See Tex. R. Civ. P. 91a, 162, 165a; Tex. Family Code
Ann. § 155.102.

                                   CONCLUSION

      We reverse the trial court’s order dismissing the case and remand the case
for proceedings consistent with this opinion.


                                                /s/   William J. Boyce
                                                      Justice

Panel consists of Justices Boyce, Jamison, and Donovan.
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