Can you ask the Court to “deny” a modification without a trial?
Nellis v. Haynie (Hous. [1st. Dist] 2020)( 01-18-00736-CV)
Facts: Father filed a suit to modify the parent-child relationship, and the non-parent managing conservators filed a "motion to deny relief in suit to modify parent-child relationship." Father filed this suit just six months after the prior order, and managing conservators said Father had not identified a material and substantial change. The court granted the motion to deny after hearing argument of counsel and without hearing any witness testimony. Father filed an appeal.
Result: The court of appeals reversed and remanded. First, the Texas Rules of Civil Procedure do not authorize motions to dismiss a SAPCR other than in limited circumstances not applicable in this case. Further, Rule 91a, which allows the court to dismiss a baseless cause of action on the pleadings and without evidence, does not apply in Family Code cases. The motion to deny was not a proper mechanism for dismissal. Even if the motion to deny was treated as motion for summary judgment, the movants did not comply with the summary-judgment procedures set forth in Rule 166a of the Texas Rules of Civil Procedure. There were no affidavits or other evidence attached to the motion. The court was not authorized to deny the relief sought by Father without affording him an evidentiary hearing.