Opinion issued August 11, 2015

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 13
- 01061
- CV

——————————— MIRIAM BLANK , Appellant V. JACK NUSZEN , Appellee

On Appeal from the 246 th District Court Harris County, Texas Trial Court Ca se No. 2008
- 51454

MEMORANDUM OPINION
A ppellant, Miriam Blank , challenges the trial court’s November 20 , 2013 order , entered after a jury trial , modifying a divorce decree and appoint ing2 appellee, Jack Nuszen, as sole managing conservator of the ir children. 1 During the pendency of her appeal, Nuszen filed a new suit for modification , and the trial
court issu ed a new final order , modifying its November 20, 2013 order.
W e dismiss the appeal as moot

. Background In his 2010 petition to modify the parent

- child relationship, Nuszen alleged that in 2009, he and Blank were divorced and, pu rsuant to an agreed decree, appointed as joint managing conservators of their five children. He alleged that since the date of the decree the “circumstances of the children, a conservator, or other party affected by the order to be modified” had “materially and substantially changed.” And Nuszen sought sole managing conservatorship of the children and the exclusive right to designate their primary residence. In her counter

- petition, Blank similarly alleged that the possession order in the decree had “become unworkable and [was] no longer in the best interest of the children.” And she alleged that Nuszen’s continued access to the children w ould “significantly impair [their] physical health and emotional wellbeing.” Blank also sought sole managing conservatorship. A jury found that the circumstances of the children, Nuszen, or Blank had “materially and substantially changed” and appointing Nuszen as the sole

1 See T EX
. F AM
. C ODE A NN . § 101.032(a) (Vernon 2014 ).3 managing conservator was in the children’s best interest. On November 20, 2013,
t he trial court entered a final order, appointing Nuszen as the sole managing
conservator of the children , appointing Blank as a possessory conservator , an d ordering Blank to pay child support . Blank appealed, contending that the trial court erred in denying her motion for continuance and “motion to strike the jury venire,” excluding expert testimony, granting a modification without a showing of changed cir cumstances, and denying her motion for new trial. During the pendency of thi s appeal , Nuszen, on January 26, 2015, filed a new “Emergency Petition” to modify conservatorship, asserting that the “circumstances of the children ha[d] materially and substant ially changed since the date of rendition” of the November 20, 2013 order. On April 23 , 2015, the trial court issued a “Default Order,” again appointing Nuszen as the sole managing
conservator , but modifying Blank’s access to the children and her child support obligations. On April 28, 2015, Bla nk filed a motion for new trial . She did not , however, appeal from the default order. Rather, o n July 17, 2015, Blank filed a new petition to modify conservatorship.
Mootness On May 15, 2015, t his Co urt notified the part ies of its intent to dismiss as moot Blank’s appeal from the trial court’s November 20, 2013 order unless she4 filed a res ponse demonstrating, in light of the trial court’s April 23, 2015 order, this Court’s jurisdiction. See T EX
. R. A PP
. P. 42.3(a). “[C] ourts have an obligation to take into accou nt intervening events that may render a lawsuit moot.” Heckman v. Williamson Cnty ., 369 S.W.3d 137, 166

– 67 (Tex. 2012)

. A ppellate courts lack jurisdiction to decide moot controversies and

re nder advisory opinions. See Nat’ l Collegiate Athletic Ass’ n v. Jones , 1 S.W.3d 83, 86 (Tex. 1999). A justiciable controversy between the parties must exist at every stage of the legal proceedings, including t he appeal, or the case is moot. Williams v . Lara , 52 S.W.3d 171, 184 (Tex. 2001). “ If a controversy ceases to exist

— the issues presented are no longer ‘live’ or the parties lack a legally
cog nizable interest in the outcome

— the case becomes moot. ” Id. The same is true if an appellate court’s judgment cannot have any practical legal effect up on a then

existing controversy. Zipp v. Wuemling , 218 S.W.3d 71, 73 (Tex. 2007) (“An appeal is moot when a court’ s action on the merits cannot aff ect the rights o f the parties.”). In response to this Court’s notification , Blank first asserts that the filing of her notice of appeal “[d]ivested” the trial court of its jurisdiction to modify its November 20, 2013 order. However, a trial court th at enters a decree affecting a child retains contin uing, exclusive jurisdiction over a suit affecting the parent

- child relationship (“ S APCR ”) pertinent to that decree. T EX
. F AM
. C ODE A NN
.5 §§ 1 01.032, 1 55.001(a), 155.002 (Vernon 2014 ). A nd, in accord with its continuing, exclusive jurisdiction , the trial court may modify a prior order providing for the conservatorship, support, or posse ssion of and access to a child.
I

d. § 156.001 (Vernon 2014)

. A suit for modification filed after the rendition of a final order in a SAPCR constitutes an “original” law sui t

. See i d. § 156 .004 (Vernon 2014) ; see Normand v. Fox , 940 S.W.2d 401, 403 (Tex. App.

— Waco 1997 , no pet. ) (“A suit for modification is a new lawsuit filed after the rendition of a final order .”). And a modification proceeding results in a “ new final order .” Bilyeu v. Bilyeu , 86 S.W.3d 278, 280 (Tex. App.

— Austin 2002 , no pet. )

. Here, Nuszen’s new suit for modification , filed after the trial court’s rendition of its November 20, 2013 final order , constituted an “original” suit. See
T EX
. F AM
. C ODE A NN
. § 156 .004. And the trial court’s April 23, 2015 modification order constitutes a new final order. See B ilyeu , 86 S.W.3d at 280. Although a trial court has limited ability to issue tempo rary orders to protect a child’s int erest during the pendency o f an appeal , the Family Code treats a modification as an original proceeding, and not a temporary order. See T EX
. F AM
. C ODE A NN
. §§ 109.001 (Vernon 2014) , 156 .004. A nd, a lthough Nuszen filed his new petition for modification during the pendency of Blank’s appeal from the trial
court’s Nove mber 20, 2013 modification order , the trial court retained jurisdiction to modify the order. See Hudson v. Markum , 931 S.W.2d 336, 337

– 38 (Tex.6 App.

— Dallas 1996 , no writ ) (holding trial court retained jurisdiction to modify child support order notwithstanding pendency of appeal from prior support order). Blank next argues that her appeal is not moot because “not only was there an injury that [she] raised at the time of filing this appeal, but there is a continuing injury that this appeal could redress , and any relief granted by this Court would have practical legal effect if awarded .” However, e ven were we to hold in Blank’s favor in her appeal from the trial court’s November 20, 2013 order, she would still be sub ject to the trial court’s April 23 , 2015 order , wherein the trial court again appointed Nuszen as the sole managing conservator of the children an d modified Blank’s access to the children and child support obligations

. See, e.g ., I n re A.T.M ., No. 12

- 07

- 00243

- CV, 2009 WL 1492832, at *4

– 5 (Tex. App.

— Tyler, pet. denied) (mem. op.) ( noting any relief court could potentially grant would afford parent no new rights). Finally, Blank argues that “even if this Court decides that [her] claims are moot, the y nonetheless fall within an exception to the mootness doctrine” because the trial court’s November 20, 2013 order “divests her of many of her parental rights and imposes an absurd child support amount on her , ” inquiries which are

“ capable of repetition.” However, t he “capable of repetition, yet evading review”

exce ption to the mootness doctrine applies only in rare circumstances. See Williams , 52 S.W.3d at 184

. It applies only when “the challenged act is of such7 short duration that the appellant cannot obtain review before the issue becomes
moot.” Blum v. Lanier , 997 S.W.2d 259, 264 (Tex. 1999) . And there must be a reasonable expectation that the same action will occur again if the is sue is not considered. Id

. Although Nuszen did file a new petiti on for modification and obtain a new order, Blank has not demonstrated that she could not obtain review of the new order

. See id .; see, e.g ., Ex parte Flores , 130 S.W.3d 100, 105 (Tex. App.

— El
Paso 2003 , pet. ref’d ) (holding sixty

- one - day protective order , expiring before appellate decision possible, rendered issues capable of repetition , yet evading review )

. “A n issue does not evade appellate review if appellate courts have add ressed the issue on the merits.” Meeker v. Tarrant Cnty. Coll. Dist ., 317 S.W.3d 754, 762 (Tex. App.

— Fort Worth 2010 , pet. denied )

. Texas courts have addressed modifications of conservatorship on n umerous occasions. See Lenz v.
Le nz , 79 S.W.3d 10, 21 (Tex. 2002) ; Turner v. Turner , 47 S. W.3d 761, 767 (Tex. App.

— Houston [1st Dist.] 2001 , no pet. ) ; see also Ngo v. Ngo , 133 S.W.3d 688, 691 (Tex. App.

— Corpus Christi 2003, no pet.) (“ Because of the stringent requirements to justify a change in custody, we cannot say that a division of custody is an act of such short duration th at judicial review is precluded

. ”).8 We hold that Blank’s appeal of the trial court’s November 20, 2013 order has become moot because the issues presented are no longer “live

. ” See W illiams , 52 S.W.3d at 184. Accordingly, we dismiss the appeal for want of jurisdiction. See T EX
. R.
A PP
. P. 42.3(a), 43.2(f). We dismiss any pending motions as moot.

Terry Jennings Justice Panel consists of Justices Jennings, Higley, and Huddle

.