Texas Judiciary Online - HTML Opinion

Further, any party = may=20 intervene in a suit by filing a pleading, subject to being = stricken out by=20 the court for sufficient cause on the motion of any party. = Tex. R.=20 Civ. P. 60; In re D.D.M., 116 S.W.3d at 231. = AUpon filing of the = petition, an=20 intervenor becomes a party to the suit for all = purposes,@ and if a party is = nonsuited or=20 dismissed, a party=3Ds claim for = affirmative relief=20 is not prejudiced. In re D.D.M., 116 S.W.3d at=20 231. A claim for affirmative relief is one that allows the=20 intervenor to recover relief despite plaintiff=3Ds abandonment or = failure to=20 establish a claim. Id. at 232. Section 153.432=20 expressly allows a grandparent to seek access of a grandchild = independent=20 of a suit for managing conservatorship and, consequently, real=20 party=3Ds request for access, = as a=20 claim for affirmative relief, survived the nonsuit. See = Tex.=20 Fam. Code Ann. ' 153.432(b); In re = D.D.M., 116 S.W.3d at 231.

Conclusion

In sum, relator has = failed to=20 establish that she is entitled to the requested relief. = Accordingly,=20 we deny relator=3Ds petition for writ = of=20 mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion = filed=20 February 8, 2007.

Panel consists of Chief Justice Hedges = and=20 Justices Yates and Seymore.

^{^[1]}A final divorce decree was signed by the = Cherokee=20 County court on June 7, 2006.

^{^[2]}This court was not furnished with a copy = of the=20 transcript from the trial.

^{^[3]}The agreed access order contains the = statutory=20 notices required under section 105.006 of the Family Code, = AContents of a Final Order.@ See Tex. Fam. Code Ann. = ' 105.006 (Vernon Supp. 2006). = Further, it=20 was entered in the case as a default judgment and states, in part, = that=20 (a) the court had jurisdiction of the case and the parties, (b)=20 Ano other court has continuing, exclusive = jurisdiction,@ and (c) Aall relief requested in this case and = not=20 expressly granted is denied.@

^{^[4]}Relator also filed a motion to transfer = the case=20 to Cherokee County, which real party alleges was denied; however, = relator=20 does not challenge that ruling in this original proceeding. = See=20 Tex. Fam. Code Ann. ' 155.201 (setting out circumstances for = mandatory=20 transfer).

^{^[5]}A SAPCR is defined in the Family Code as = follows:=20 A>Suit affecting the parent‑child=20 relationship=3D means a suit filed as provided by this = title in=20 which the appointment of a managing conservator or a possessory=20 conservator, access to or support of a child, or = establishment or=20 termination of the parent‑child relationship is = requested.@ Id. ' 101.032(a) (Vernon 2002) (emphasis=20 added).

^{^[6]}Section 153.432 was amended effective = September 1,=20 2005 to permit a grandparent to file an original suit to request=20 Apossession of@ or access to a grandchild. See = Tex.=20 Fam. Code Ann. ' 153.432 (Vernon Supp. 2006). The = previous=20 version of the statute applies in this case. See=20 id.

^{^[7]}Section 102.004(b) was amended effective = June 1,=20 2005; the amendments apply to original suits filed on that date or = thereafter. See ' 102.004 historical note (Vernon Supp.=20 2006). The previous version of the statute applies to this=20 case.

^{^[8]}In support of her argument, relator = relies on two=20 cases dealing with the death of a spouse during a pending = divorce. =20 See Griggs v. Latham, 98 S.W.3d 382 (Tex. App.CCorpus Christi 2003, pet. denied); = Smelscer v.=20 Smelscer, 901 S.W.2d 708 (Tex. App.CEl Paso 1995, no writ). However, = those cases=20 are distinguishable because, here, relator is asserting a = collateral=20 attack on the agreed access order and our review is limited to the = Harris=20 County court=3Ds jurisdiction to render that = order. Also,=20 although relator asserts that real party was unable to intervene = and=20 petition for access within one pleading, she did not cite, nor did = we=20 find, authority to support that statement. =20