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Bruce Warren WILKINSON, Appellant, v. Elise Franden WILKINSON, Appellee.
OPINION
The court ordered the appellant to furnish the appellee an accounting of their son's trust fund. The appellant contends the court erred because the appellee lacked standing to sue for an accounting. We affirm.
The son's paternal grandmother created the trust in 1984 and named the appellant trustee. The appellant and the appellee were divorced in 1990. The final divorce decree named the parties joint managing conservators. The decree further provided that the appellee would have sole and exclusive control of their son's property. However, the decree specifically excluded the trust from the appellee's control. Pursuant to the trust, the son is not entitled to any distribution, except at the trustee's discretion, until he turns 25, on December 28, 2004.
The appellant contends the appellee brought suit in her own name and for her own benefit. He argues the court's decision to compel an accounting is erroneous because the appellee lacks standing to sue for an accounting.1 The appellant concedes that had the appellee filed suit as their son's “next friend” she could have asserted their son's rights to an accounting.2 The appellant, however, argues that the language used presents a personal claim only.
The appellee responds that she sued as managing conservator, not in her own name. She asserted her son's right to an accounting as follows: “As managing conservator of the minor child, cross-movant Elise Wilkinson, is entitled to information in connection with that trust.” She argues that suing as managing conservator gives her standing. Furthermore, she argues that if the appellant has an argument it is based on capacity not standing.
To bring a suit and to recover on a cause of action, the plaintiff must have both capacity and standing. El T. Mexican Restaurants, Inc. v. Bacon, 921 S.W.2d 247, 250 (Tex.App.-Houston [1st Dist.] 1993, writ denied). Capacity is a party's legal authority to go into court and prosecute or defend a suit. Davis v. City of Houston, 869 S.W.2d 493, 494 n.1 (Tex.App.-Houston [1st Dist.] 1993, writ denied). Standing is a party's justiciable interest in the suit and is a component of subject matter jurisdiction. El T., 921 S.W.2d at 250. By failing to object to the appellee's capacity, the appellant waived the issue. Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex.1988); Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 787 (Tex.App.-Houston [1st Dist.] 1994, writ denied); Tex. R. Civ. P. 93. Standing, however, is not waived by a party's failure to object at the trial court and can be raised for the first time on appeal. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). The appellant argues the appellee lacked standing. We disagree.
The appellant raises a question closely related to the one raised but unanswered in Davis v. Davis, 734 S.W.2d 707 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.). In Davis, the possessory conservator sought an accounting of a trust created for the benefit of his children. Davis held that a possessory conservator lacked “standing, capacity, or power” to sue for an accounting. Id. at 709. By statute, possessory conservators' and managing conservators' rights, duties, and privileges are different. See id. at 710.
A sole managing conservator's powers are greater than those of a possessory conservator. Compare Tex. Fam. Code Ann. § 153.132 (Vernon 1996) (defining the rights and duties of the sole managing conservator), with id. § 153.192 (Vernon 1996) (defining the rights and duties of the possessory conservator). Specifically, a sole managing conservator has the right to represent her child in a legal action. See Tex. Fam. Code Ann. § 153.132(4) (Vernon 1996). The possessory conservator has no such right. See id. § 153.192 (Vernon 1996). We must determine whether the appellee, a joint managing conservator, has this right.
The joint managing conservator agreement is controlled by Texas Family Code section 153.133 (Vernon 1996). Specifically, this section requires that the court's order allocate between the parties independently, jointly, or exclusively all of the rights and duties of a parent provided by chapter 151. Tex. Fam. Code Ann. § 153.133(a)(4) (Vernon 1996). One right and duty of a parent is “to represent a child in a legal action and to make other decisions of substantial legal significance concerning the child.” Id. § 151.003(a)(7) (Vernon 1996).
The parties' divorce decree provided both the appellee and the appellant the right to represent their son in legal actions. The decree provided neither with the exclusive right to represent the child. The decree also provided the appellee with sole and exclusive control of their son's property, except the trust for which the appellant had sole and exclusive control. The terms of the decree and the statute itself confer on the appellee the right, power, and duty to represent her son in a legal action. A suit for an accounting of the trust is a legal action. We can find no limitation on the appellee's rights as a joint managing conservator that would prohibit her from bringing this legal action in that capacity.
For this reason we hold that the appellee, as a joint managing consevator, has standing to represent her son in an action for an accounting of the trust.
We overrule the sole point of error.
FOOTNOTES
1. The appellant also complains on appeal that Tex. Fam.Code Ann. § 153.076 (Vernon 1996) does not create a retroactive right to an accounting. The appellant, however, did not present this argument to the trial court and has, thereby, waived this argument. Tex.R.App. P. 33.1.
2. The appellant argues that the suit should have been pled as a “next friend” suit. The appellee's failure to use the phrase “next friend” in the trial court and on appeal is not dispositive. See Aguilar v. Barker, 699 S.W.2d 915, 917 (Tex.App.-Houston [1st Dist.] 1985, no writ) (“Detailed pleadings are not required in suits affecting the parent-child relationship, because the paramount concern of the court is the best interest of the child, and therefore, the technical rules of pleading and practice are of little importance.”).
ANDELL, Justice.
COHEN and NUCHIA, JJ., also sitting.
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Docket No: No. 01-96-00219-CV.
Decided: November 20, 1997
Court: Court of Appeals of Texas,Houston (1st Dist.).
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