Opinion issued August 29, 2013

In The

First Court of Appeals

NO. 01-12-00580-CV

JEFFERY JANNER AND MEG JANNER, Appellants

V.

KELSEY A. RICHARDSON, Appellee

On Appeal from the County Court at Law

Washington County, Texas

Trial Court Cause No. CCL6370

OPINION

Jeffery and Meg Janner filed a petition in intervention in their son Joel Neal 

Janner’s divorce proceeding, seeking access to their grandchild, D.K.J. Joel had 

died nearly seven months before the Janners sought to intervene in the case. The 

trial court, concluding that it had lost jurisdiction over the proceeding when Joel 
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died, dismissed the Janners’ petition and the suit and vacated the temporary orders 

it had entered after Joel’s death. The Janners appealed, contending that the trial 

court erred in dismissing the case and should have treated their petition in 

intervention as an original petition in a new case. Finding no error, we affirm.

Background

Joel Neal Janner and Kelsey A. Richardson were married and had one child, 

D.K.J. On June 24, 2010, Kelsey filed for divorce from Joel and requested that the 

trial court enter an order requiring that all possession of and access to D.K.J. by 

Joel be supervised. On August 25, 2010, the trial court signed temporary orders 

requiring Joel’s visitation with D.K.J. be supervised. Three months later, on 

November 27, 2010, Joel died. 

Nearly seven months after Joel’s death, on June 20, 2011, Joel’s parents, 

Jeffrey and Meg Janner, filed in the divorce proceeding a “Petition in Intervention 

in Suit Affecting the Parent-Child Relationship,” seeking access to their 

grandchild, D.K.J. The Janners, however, did not personally serve Kelsey with the 

petition at that time. In early July 2011, Kelsey moved to the U.S. Virgin Islands 

with D.K.J. One month after the move, the trial court held a temporary orders 

hearing at which Kelsey was not present. On October 24, 2011, the trial court 

signed temporary orders granting the Janners access to D.K.J.
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Kelsey ultimately was served with the petition in intervention and the 

temporary orders on December 12, 2011, six months after the petition was filed, 

while she was visiting family in Texas. Kelsey then filed a document entitled 

“Plea to Decline Jurisdiction, Plea in Abatement and Motion to Dismiss.” Kelsey 

requested that the trial court dismiss the petition in intervention because the trial 

court had lost jurisdiction over the divorce proceeding upon Joel’s death, leaving 

no suit in which the Janners could intervene. The trial court concluded that it lost

jurisdiction upon Joel’s death, vacated its temporary orders, and dismissed the suit. 

The Janners appealed.

Discussion

“It is well settled that a cause of action for a divorce is purely personal and 

that the cause of action for a divorce terminates on the death of either spouse prior 

to the rendition of a judgment granting a divorce.” Garrison v. Tex. Commerce 

Bank, 560 S.W.2d 451, 453 (Tex. Civ. App.—Houston [1st Dist.] 1977, writ ref’d 

n.r.e.); see also Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex. 1983) (orig. 

proceeding). This includes all “incidental inquiries of property rights and child 

custody.” Whatley, 649 S.W.2d at 299; see also Pollard v. Pollard, 316 S.W.3d 

246, 250 (Tex. App.—Dallas 2010, no pet.). 

Indeed, “[t]he death of either party to the divorce action prior to entry of the 

divorce decree withdraws the court’s subject matter jurisdiction over the divorce 
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action.” Pollard, 316 S.W.3d at 251; see Garcia v. Daggett, 742 S.W.2d 808, 

809–10 (Tex. App.—Houston [1st Dist.] 1987, orig. proceeding [leave denied])

(death of wife immediately deprived court of jurisdiction over divorce action, and 

temporary custody orders entered after death of wife were void). “The proper 

procedural disposition of a divorce action when one of the parties dies is 

dismissal.” Whatley, 649 S.W.2d at 299; see Garcia, 742 S.W.2d at 810 (stating 

that, after death of one party to divorce action, “the trial court was without 

jurisdiction to issue any orders based on the underlying divorce action”). 

In this case, it is undisputed that Joel died before the Janners filed their 

petition in intervention. Under well-established Texas law, Joel’s death caused the 

trial court to lose jurisdiction over the divorce action in which the Janners 

attempted to intervene. See Pollard, 316 S.W.3d at 251; Garcia, 742 S.W.2d at

809–10. Accordingly, the trial court was required to dismiss the case and vacate 

the orders it had entered after Joel’s death. Whatley, 649 S.W.2d at 299; Garcia,

742 S.W.2d at 810. The trial court applied these settled principles and set forth 

this rationale in its findings of fact and conclusions of law.

The Janners nevertheless argued below, and argue here, that the trial court 

should have treated their petition in intervention as an original petition for access
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to D.K.J.

1 They argue that they could have filed an original proceeding for 

grandparent access instead of intervening in the divorce action, and therefore, the 

trial court should have treated their petition in intervention as an original petition in 

a separate suit. They contend that this is required by Texas Rule of Civil 

Procedure 71, which is titled “Misnomer of Pleading.” It states: “When a party has 

mistakenly designated any plea or pleading, the court, if justice so requires, shall 

treat the plea or pleading as if it had been properly designated.” TEX. R. CIV. P. 71. 

The typical application of Rule 71 permits a trial court to consider a motion or 

other filing according to its substance, even if it is not accurately titled. See, e.g.,

C/S Solutions, Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d 299, 306–07 

(Tex. App.—Houston [1st Dist.] 2008, no pet.) (although plaintiff titled document 

a “nonsuit,” in substance document was an amended pleading, and pursuant to 

Rule 71, was not controlled by the fact that the term “nonsuit” appeared in 

document); Johnson v. State Farm Lloyds, 204 S.W.3d 897, 899 n.1 (Tex. App.—

Dallas 2006), aff’d, 290 S.W.3d 886 (Tex. 2009) (motion titled “Motion to 

Compel,” which requested in the body summary judgment, was properly treated as 

a motion for summary judgment pursuant to Rule 71); BCY Water Supply Corp. v. 

Residential Inv., Inc., 170 S.W.3d 596, 604–05 (Tex. App.—Tyler 2005, pet. 

 1 Family Code Section 153.432 permits grandparents to file an original suit or a suit 

for modification to seek access to a grandchild. See TEX. FAM. CODE ANN. 

§ 153.432(a), (b) (West Supp. 2012); see also In re Smith, 260 S.W.3d 568, 573 

(Tex. App.—Houston [14th Dist.] 2008, no pet.). 
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denied) (motion that was entitled “motion for new trial” was correctly treated as 

motion for JNOV under Rule 71). But the Janners cite no authority demonstrating 

that Rule 71 operates to confer jurisdiction in a matter in which a trial court has 

lost jurisdiction, nor do they cite authority for the proposition that a trial court may 

rely on Texas Rule of Civil Procedure 71 to create a new action after determining 

that a pleading should have been but was not filed as such.

We find more persuasive Kelsey’s reliance on Garcia v. Dagget. In that 

case, the wife was murdered while the divorce action was pending. Garcia, 742

S.W.2d at 809. The husband, who was charged with the murder, moved to 

dismiss, and the child’s aunt and uncle filed a petition in intervention seeking 

temporary conservatorship over the child. Id. The trial judge denied the motion to 

dismiss and granted temporary managing conservatorship to the aunt and uncle. 

Id. The husband sought mandamus relief and we conditionally granted it, 

instructing the trial court to dismiss. Id. We reasoned that because the wife’s 

death immediately abated the divorce action, the trial court had no authority to 

enter any order other than an order of dismissal. Id. (citing Rodriguez v. McFall, 

658 S.W.2d 150, 152 (Tex. 1983)). We specifically noted that the aunt and uncle

in Garcia, like the Janners in this case, could have filed a separate suit seeking the 
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same relief.2

 Id. at 809–10; see Smelscer v. Smelscer, 901 S.W.2d 708, 710 (Tex. 

App.—El Paso 1995, no pet.) (“[T]he Garcia court contemplated a different result 

if the intervenors had either previously filed an independent suit affecting the 

parent-child relationship or if the trial court entered appropriate orders based on the 

jurisdiction conferred upon it following the filing of a proper suit.”). In short, we 

concluded that the trial court was required to dismiss due to the wife’s death, even 

if the aunt and uncle could have brought a separate original proceeding seeking the 

very relief they sought in the petition in intervention. See Garcia, 742 S.W.2d at 

809–10.

Likewise, here, the Janners claim that the trial court erred in dismissing their 

petition in intervention rather than treating it as an original petition in a new suit 

for grandparent access. However, as in Garcia, the fact that the Janners may have 

had the right to file a separate proceeding for access does not alter the rule that, 

after the death of a party to a divorce action, the divorce action terminates and the 

trial court loses authority to enter any order other than an order of dismissal. Id. at 

809; see also Pollard, 316 S.W.3d at 250–51 (citing Garcia); Smelscer, 901 

S.W.2d at 710 (death of party to divorce caused abatement of action such that there 

existed no underlying suit in which to intervene). Accordingly, we conclude that 

 2 Section 102.004 of the Family Code confers standing upon relatives related to a 

child within the third degree by consanguinity to file suit for conservatorship 

under certain circumstances. See TEX. FAM. CODE ANN. § 102.004 (West 2008).
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the trial court, having lost authority to enter any order other than an order of 

dismissal, correctly dismissed the suit, including the Janners’ petition in 

intervention. 

We overrule the Janners’ sole issue.

Conclusion

We affirm the trial court’s judgment. 

Rebeca Huddle

Justice

Panel consists of Justices Keyes, Sharp, and Huddle.