                            COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                  NO. 2-09-180-CV

IN RE JERRY F.                                                          RELATOR

                                       ------------

                               ORIGINAL PROCEEDING

                                       ------------

                                      OPINION

                                       ------------

           The court has considered relator’s petition for writ of mandamus and is

of the opinion that the petition should be denied. Accordingly, relator’s petition

for writ of mandamus is denied.1 Relator’s “Unopposed Motion to Abate to

Allow for Mediation” is denied as moot.2




       1
     … As the dissent notes, real parties in interest have filed a petition for
review in the Supreme Court of Texas. Thus, even if we were inclined to grant
the petition, to do so now would improperly interfere with the jurisdiction of the
supreme court. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 702 (Tex. 1990);
Doctors Hosp. Facilities v. Fifth Court of Appeals, 750 S.W.2d 177, 179 (Tex.
1988).
   2
    … Our denial of the motion as moot in no way hinders or discourages the
parties’ efforts to mediate, as the dissent suggests. To the contrary, the
parties are now free to pursue mediation without the burden of a proceeding
pending in this court, in addition to the proceeding pending in the supreme
court.
     Relator shall pay all costs of this original proceeding, for which let

execution issue.




                                             JOHN CAYCE
                                             CHIEF JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON, J.; and DIXON W. HOLMAN (Senior
Justice, Retired, Sitting by Assignment).

LIVINGSTON, J. filed a dissenting opinion.

DELIVERED: July 10, 2009




                                     2
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-09-180-CV


IN RE JERRY F.                                                        RELATOR


                                    ------------

                           ORIGINAL PROCEEDING

                                    ------------

 DISSENTING OPINION FROM OPINION DENYING MANDAMUS
   AND ORDER DENYING UNOPPOSED MOTION TO ABATE
         MANDAMUS TO ALLOW FOR MEDIATION

                                    ------------

      I respectfully dissent from the majority’s failure to grant Relator’s, the

biological father’s, unopposed request to abate this matter for thirty days while

the parties attempt to mediate a settlement. The Relator has simultaneously

filed an unopposed motion to dismiss his motion to suspend the judgment and

orders of the trial court and to enforce the judgment of this court in the direct

appeal, Cause No. 02-08-00212-CV, In re D.M.F., 283 S.W.3d 124 (Tex.

App.—Fort Worth 2009, pet. filed) (op. on reh’g), in order to provide the parties
an opportunity to mediate as well. 3 This court granted that motion on June 30,

2009.

                                  Background

       The judgment from which Relator appealed concerns the trial court’s

termination of his parental rights and conservatorship of his two-year-old child,

D.M.F. We reversed the termination of his parental rights in our original opinion

issued in December 2008, and again on rehearing in April 2009, all in the direct

appeal (Cause No. 02-08-00212-CV). 4        In re D.M.F., 283 S.W.3d at 135.

Although he never asked this court or the trial court to suspend the trial court’s

judgment prior to the issuance of our opinions, he has asked us twice since

then to either issue mandate early or suspend enforcement of the trial court’s

judgment, and we have refused, despite our right to do so under the appellate

rules 18.6, 19.3(b), (c), and 24.2(a)(4). See Tex. R. App. P. 18.6, 19.3(b), (c),

24.2(a)(4).

       Additionally, we have not issued our mandate early because Real Parties

in Interest represented that they intended to file a petition for review of our



   3
    … A petition for review has now been filed by Real Parties in Interest, the
foster parents, in the Supreme Court of Texas, Cause No. 09-0456.
  4
    … TDFPS recommended placing D.M.F. with his father and withdrew from
the case. Relator has never been given possession of his child, who remains
with the unrelated foster parents.

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judgment.    They had not filed their petition for review as of the date of

Relator’s motion to enforce our judgment, and only did so after seeking and

receiving an extension of time to file their petition for review by June 16, 2009;

they filed their petition on June 19, 2009, presumably under the mailbox rule.

Tex. R. App. P. 9.2(b).

                          Majority’s Denial of Mandamus

      An appellate court’s reversal of a judgment or order of a trial court is a

“judicial pronouncement, by a court having power to make the determination,

that the judgment . . . shall not stand.” Ex parte Rutherford, 556 S.W.2d 853,

855 (Tex. Civ. App.—San Antonio 1977, orig. proceeding).

      The trial court’s order has been divested of its enforceable
      character not because of the fact that an appeal ha[s] been
      perfected . . . , but because the appeal succeeded and the order
      ha[s] been set aside. The statute [former family code section
      11.19(c), now section 109.002(c)] contains no language which
      suggests that an order of a trial court in a custody case remains in
      effect after it has been reversed.

Id. at 854. “Generally, reversal of a judgment or order completely nullifies it,

leaving it as if it had never been rendered other than as to further rights of

appeal.” Flowers v. Flowers, 589 S.W.2d 746, 748 (Tex. Civ. App.—Dallas

1979, no writ) (citing Rutherford, 556 S.W.2d at 854); see also In re S.S.G.,

208 S.W.3d 1, 3 (Tex. App.—Amarillo 2006, pet. denied); In re Marriage of

Stein, 190 S.W.3d 73, 75 (Tex. App.—Amarillo 2005, no pet.). Once the

                                        3
appellate court reverses the trial court, the trial court’s judgment has no further

force or effect.   “Nothing . . . prohibits the trial court from enforcing the

appellate court’s judgment after it has been rendered but before the mandate

has been received.” Universe Life Ins. Co. v. Giles, 982 S.W.2d 488, 492

(Tex. App.—Texarkana 1998, pet. denied). Thus, I believe the trial court erred

when it refused to grant Relator’s habeas petition after the issuance of our

opinion and judgment.     And although our mandate had not issued—which

clearly authorizes execution on our judgment—our reversal should have at least

immediately nullified the effect of the trial court’s existing order. “It is only

when there is an actual interference with the appellate court’s active power and

authority over the case by a trial court order that the same can be considered

void so as to constitute a fundamental error.”       Giles, 982 S.W.2d at 491.

Without an existing, valid order in place, the child is to be given to the person

with the superior right of possession: here, the biological father. See Tex.

Fam. Code Ann. §§ 151.001 (a)(1), 157.371–.376 (Vernon 2008); Rodriguez

v. McFall, 658 S.W.2d 150, 151 (Tex. 1983); Armstrong v. Reiter, 628

S.W.2d 439, 440 (Tex. 1982).

      Throughout the pendency of the appeal in this court—the issuance of our

original opinion in December 2008 reversing the trial court’s judgment, the four-

month delay in our consideration of and ruling upon the foster parents’ motion

                                        4
for rehearing and rehearing en banc, and the writing and issuance of majority

and dissenting opinions on rehearing—Relator has had no court-ordered access

to his now two-year-old child based solely upon a now-reversed trial court

judgment.    Furthermore, the child has remained with the nonparent foster

parents as quasi-managing conservators even though they had no pleadings in

place seeking conservatorship at the time of trial. This is so despite Relator’s

repeated requests that we issue mandate early as authorized by rule 18.6 and

despite his denied habeas petition in the trial court and the majority’s decision

to now deny him mandamus relief. See Tex. R. App. P. 18.6; see also Tex. R.

App. P. 24.2(a)(4).    For these reasons, I would grant Relator’s petition for

mandamus, and I dissent from the majority’s denial. 5

                  Majority’s Denial of Opportunity to Mediate

      More importantly, Texas has a public policy of encouraging the peaceful

resolution of disputes, particularly those involving the parent-child relationship,



  5
     … There is no assumption that the issuance of mandamus in this separate
cause would automatically and improperly interfere with the supreme court’s
jurisdiction in the direct appeal, as asserted by the majority. Majority op. at 1,
n. 1. Mapco, Inc. v. Forrest, cited by the majority, applies to direct appeals,
not to related but separate original proceedings. 795 S.W.2d 700, 702 (Tex.
1990) (orig. proceeding). In fact, the discussion in Doctors Hosp. Facilities, an
appeal of an original proceeding, acknowledges that lower courts may
undertake some actions even while a petition or writ is pending in the supreme
court. Doctors Hosp. Facilities v. Fifth Court of Appeals, 750 S.W.2d 177, 179
(Tex. 1988).

                                        5
and the early settlement of pending litigation through voluntary settlement

procedures. See Tex. Fam. Code Ann. § 153.007 (Vernon 2008); Tex. Civ.

Prac. & Rem. Code Ann. § 154.002 (Vernon 2005); Boyd v. Boyd, 67 S.W.3d

398, 402 (Tex. App.—Fort Worth 2002, no pet.). Trial and appellate courts are

specifically charged with the responsibility of carrying out this public policy in

the civil practices and remedies code. Tex. Civ. Prac. & Rem. Code Ann. §

152.003 (Vernon 2005); Boyd, 67 S.W.3d at 402; Adams v. Petrade Int'l, Inc.,

754 S.W.2d 696, 715 (Tex. App.—Houston [1st Dist.] 1988, writ denied);

Brooks v. Brooks, 257 S.W.3d 418, 421 (Tex. App.—Fort Worth 2008, pet.

denied); see also Tex. Gov’t Code Ann. § 2009.002 (Vernon 2008) (“It is the

policy of this state that disputes before governmental bodies be resolved as

fairly and expeditiously as possible and that each governmental body support

this policy by developing and using alternative dispute resolution procedures in

appropriate aspects of the governmental body’s operations and programs.”).

“Wherever possible, a trial court should give effect to agreements between the

parties.” In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 846 (Tex. 2008) (orig.

proceeding). Thus, not only has our legislature spoken on the subject, the

Supreme Court of Texas has directed our courts to promote parties’ attempts

to settle their conflicts and implement their agreements.

      Accordingly, I would grant Relator’s motion to abate this original

                                        6
proceeding and direct the parties to notify this court of their progress in

mediation within thirty days. See Tex. R. App. P. 43.6 (providing that a “court

of appeals may make any other appropriate order that the law and the nature

of the case require”); Tex. Fam. Code Ann. § 153.001(a)(1) (Vernon 2008)

(providing that the public policy of this state is to assure children frequent and

continuing contact with their parents).     Furthermore, due to the request to

mediate, I find it fundamentally unfair and unjust to deny Relator’s petition at

this time before giving the parties the opportunity to mediate.

      Based upon all of the foregoing, I respectfully dissent.




                                            TERRIE LIVINGSTON
                                            JUSTICE

DELIVERED: July 10, 2009




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