NO. 07-11-00355-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
NOVEMBER 30, 2011
IN THE INTEREST OF A.W.D., A CHILD
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NO. 25,556; HONORABLE DAN MIKE BIRD, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
OPINION
Appellant Otis W. Dupre attempts the appeal of an order confirming registration
of a foreign support order.1 Finding we lack jurisdiction, we will dismiss the appeal.
Background
On July 22, 2010, the District Clerk of Wilbarger County provided Dupre with
written notice of registration in Texas of a foreign support order.2 According to the
1
The Uniform Interstate Family Support Act, Tex. Fam. Code Ann. §§ 159.001-
159.901 (West 2008 and Supp. 2011), provides for registration and enforcement in
Texas of a foreign support order or income-withholding order. Tex. Fam. Code Ann. §
159.601 (West 2008).
2
See Tex. Fam. Code Ann. § 159.605 (West 2008).
notice, under an attached Kentucky divorce decree he owed a child support arrearage
of $7,452.58.
The record also contains a motion for enforcement, also filed on July 22, filed by
appellee the Attorney General of Texas. The pleading asked the court to hold Dupre in
contempt for failure to make timely or full support payments. It further requested an
order of payment and an income withholding order and an award of reasonable
attorney’s fees.3
On October 7, 2010, the trial court appointed counsel for Dupre. In his live
answer, filed February 9, 2011, Dupre alleged he lacked sufficient capacity to
understand the notice of registration and required appointment of a guardian ad litem.4
He interposed a general denial and affirmatively alleged a claim for arrearages was
barred by limitations.
On May 24, 2011, the trial court signed an “order confirming registration of
foreign support order.” The order decreed “[t]he Court after hearing the evidence and
argument of counsel, FINDS the following foreign Order was sought to be registered
and ORDERS that the same should be, and is hereby registered in the State of
3
A “responding tribunal,” see Family Code § 159.102(17), may inter alia enforce
a support order, order income withholding, determine the amount of arrearages and
specify a method of payment, enforce orders by civil or criminal contempt or both,
award reasonable attorney’s fees and other fees and costs, and grant any other
available remedy. Tex. Fam. Code Ann. § 159.305(1),(2),(3),(4),(5),(11),(12) (West
2008).
4
In a previously filed pleading, Dupre alleged he was “physically and mentally
disabled as a result of bipolar disorder and mental retardation, and his disabilities are
such as affect his capacity in regard to the appreciation of legal matters that can and do
affect him . . . .”
2
Texas[.]” The order does not contain language disposing of the affirmative claims
alleged in the Attorney General’s motion for enforcement. Nor does it contain language
indicating it is intended as a final judgment.
Dupre filed a notice of appeal. After the clerk’s record was filed we notified the
parties by letter that we questioned the finality of the order and thus our jurisdiction.
The appeal was abated and we directed the parties to address the jurisdictional issue.
Each did so by letter brief.
Analysis
We will determine our jurisdiction over this appeal on our own motion and in light
of the facts we have recited. See Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d
275, 277 (Tex.App.--Amarillo 1995, no writ) (appellate court must address questions of
jurisdiction, sua sponte).
“[T]he general rule, with a few mostly statutory exceptions, is that an appeal may
be taken only from a final judgment.” Lehmann v. Har Con-Corp., 39 S.W.3d 191, 195
(Tex. 2001). A final judgment in a civil case is one that disposes of all parties and all
issues in a lawsuit. Id. at 195; Houston Health Clubs, Inc. v. First Court of Appeals, 722
S.W.2d 692, 693 (Tex. 1986). “[W]hen there has not been a conventional trial on the
merits, an order or judgment is not final for purposes of appeal unless it actually
disposes of every pending claim and party or unless it clearly and unequivocally states
that it finally disposes of all claims and all parties.” Lehmann, 39 S.W.3d at 205. A
court of appeals has no appellate jurisdiction over a nonfinal, interlocutory order unless
3
expressly authorized by statute. New York Underwriters Ins. Co. v. Sanchez, 799
S.W.2d 677, 679 (Tex. 1990).
Here the order of confirmation does not dispose of the claims raised in the
motion for enforcement.5 The parties do not cite us to, nor are we aware of, any
authority authorizing an immediate appeal of an interlocutory confirmation order while
issues of contempt and enforcement remain pending. See Cowan v. Moreno, 903
S.W.2d 119, 124 (Tex.App.--Austin 1995, no pet.) (holding order confirming registration
of foreign child support order but expressly declining to rule on order’s enforceability
was not final and appealable).6
We have examined a line of authority recognizing an exception to the general
rule of finality and specifying that “a judgment otherwise disposing of all issues between
the parties is not rendered interlocutory if further proceedings may be required to carry
the judgment into effect or incidental matters remain to be settled.” Beavers v. Beavers,
651 S.W.2d 52, 53-54 (Tex.App.--Dallas 1983, no writ) (citing Dunn v. Dunn, 439
5
The order also makes no express disposition of Dupre’s claim of lack of
capacity and asserted need for appointment of a guardian ad litem.
6
The appeal is not presented under the procedure outlined in § 51.014(d) of the
Civil Practice & Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West
2008) (specifying procedure for interlocutory appeal in a civil action of a matter not
otherwise immediately appealable). Although not directly pertinent here, we note that
this procedure is not available in an action brought under the Family Code filed on or
after September 1, 2011. Act of May 30, 2011, 82nd Leg., R.S., ch. 203, §§ 3.01, 6.01,
6.02, 2011 Tex. Gen. Laws 758, 759 (adding subsection d-1 which provides
“[s]ubsection (d) does not apply to an action brought under the Family Code”), 761
(specifying the effective date of the act) (current version at Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(d),(d-1) (West Supp. 2011)).
4
S.W.2d 830, 833 (Tex. 1969); Ferguson v. Ferguson, 161 Tex. 184, 338 S.W.2d 945,
947 (Tex. 1960); Hargrove v. Insurance Invest. Corp., 142 Tex. 111, 176 S.W.2d 744
(Tex. 1944)). This “rule is an apparent exception to the ‘one final judgment’ requirement
of rule 301 of the Texas Rules of Civil Procedure . . . .” Id. (citing Schwartz v. Jefferson,
520 S.W.2d 881, 887 (Tex. 1975); Hargrove, 142 Tex. 111, 176 S.W.2d 744 (Tex.
1944); cf. Huff v. Huff, 634 S.W.2d 5 (Tex. 1983) (divorce decree awarding monthly
child support payments is final even though the trial court retains authority to modify it)).
As did the court in Cowan, we find the exception described in such cases inapplicable
here. See Cowan, 903 S.W.2d at 124 (citing Ferguson, 338 S.W.2d at 947).
In his letter brief, Dupre argues we should view the relief sought by the Attorney
General’s motion for enforcement as moot because the Attorney General has issued an
administrative writ of withholding attaching Dupre’s social security disability benefits. Of
this fact we have no indication in the record other than a statement in Dupre’s motion for
new trial. Moreover, assuming the accuracy of this assertion, what if any effect it may
have on the remaining claims of the Attorney General in the trial court is for that court’s
determination.
Dupre also argues the confirmation order inferentially confirmed the trial court’s
power to enforce the foreign decree. Whether or not this is a correct proposition is a
question we do not consider. It remains that the Attorney General seeks affirmative
relief against Dupre which the confirmation order does not resolve.
5
Conclusion
Because no final, appealable order has been rendered in this case we lack
appellate jurisdiction. Accordingly, the appeal is dismissed for want of jurisdiction.7
Tex. R. App. P. 43.2(f).
James T. Campbell
Justice
7
In his letter brief, Dupre asks that if the appeal is dismissed we do so “without
prejudice.” By concluding the trial court’s order is not appealable and dismissing
Dupre’s appeal, we express no opinion on the merits of any substantive issues he has
raised in the trial court, and our dismissal is without prejudice to Dupre’s assertion of his
position on those issues in any future appeal.
6
in the Interest of A.W.D., a Child
Combined Opinion