COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
IN THE INTEREST OF §
No. 08-20-00225-CV
J.O., §
Appeal from the
A CHILD. §
388th District Court
§
of El Paso County, Texas
§
(TC# 2015DCM2215)
§
MEMORANDUM OPINION
On November 2, 2020, Appellant, Maria Fountain, pro se, filed a notice of appeal stating
her intent to appeal the trial court’s order titled, “Findings and Temporary Orders in Modification
of Parent-Child Relationship,” dated October 7, 2020. The clerk’s record was filed on February
22, 2021. No reporter’s record was requested. Following extensions of time, Appellant filed an
opening brief on April 26, 2021. Appellee filed a response brief on July 8, 2021. To file a reply
brief, Appellant requested an extension to September 1, 2021. Although we granted extension
requests, Appellant has filed no reply to date.
This Court is obligated to determine its jurisdiction to entertain an appeal, even if it is not
raised by the parties. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex.
1990). A court may not address the merits of a claim if it lacks jurisdiction to do so. State v. Ninety
Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency ($90,235), 390 S.W.3d
289, 291-92 (Tex. 2013). Generally, an appeal may only be taken from a final judgment. Lehmann
v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Furthermore, unless specifically authorized
by statute, we only have jurisdiction to review final judgments. McFadin v. Broadway
Coffeehouse, LLC, 539 S.W.3d 278, 283 (Tex. 2018). Relevant to this case, the Texas Family Code
expressly prohibits an interlocutory appeal from a temporary order in a suit affecting the parent
child relationship. See TEX. FAM. CODE ANN. § 105.001(e).
If an order does not clearly, unequivocally, and unmistakably indicate it is a final judgment,
we must “examine the record to determine the trial court’s intent.” In re R.R.K., 590 S.W.3d 535,
543-44 (Tex. 2019). Here, the language of the order at issue is ambiguous. The order dated October
7, 2020, grants temporary orders pertaining to possession of the child and sets at least two hearings
on future dates from the order’s date. First, on October 30, 2020, at 10 a.m., a hearing is set to
“enter judgment in this cause.” Second, on December 28, 2020, at 10 a.m., the order provides,
“[t]his matter is set for review . . . .” These settings suggest the order was interlocutory. However,
the order also grants a permanent injunction against both parties, which is relief that can only be
granted in a final judgment.
Adding further complication, on August 30, 2021, Appellant filed with this Court a motion
for stay of proceedings on the basis that the trial court had scheduled a judge’s conference for
September 2, 2021. Appellant asserted, “If granted, the motion to stay proceedings will allow the
resolution of pending litigation in the lower court.” We denied the motion for stay, but further
ordered the parties to clarify, before September 10, 2021, whether the order being appealed was a
final order. On September 8, 2021, Appellant filed a response further indicating Appellant had
received notice of a scheduled conference with the lower court and “Appellant attended the
2
scheduled lower court’s conference via zoom.” Additionally, on that same date, Appellant filed
with this Court a motion for emergency stay of the trial court’s order to appear on September 9,
2021. Along with the motion, Appellant separately filed a copy of the trial court’s order, dated
September 3, 2021, which required Appellant to appear on September 9, 2021, at 10:30 a.m., to
respond to “the Enforcement of Temporary Orders . . . .”
Based on the tension in the language of the order at issue, we determine it is ambiguous as
to whether it was intended to be final. When a family law order is ambiguous as to finality, we
must review the record to determine the trial court’s intent. In re R.R.K., 590 S.W.3d at 544. After
reviewing the clerk’s record and motions filed with this Court, we conclude the order at issue was
not a final order. See id. (concluding memorandum order was not final because record indicated
neither trial court nor parties intended it to be final). Because an appeal may be prosecuted only
from a final order or judgment, and the record appears to indicate no final order had been entered
in the underlying case, we ordered Appellant to clarify why this appeal should not be dismissed
based on lack of jurisdiction. Appellant’s response essentially confirmed no final order has been
entered. Because the record does not contain a final order, we have no choice but to dismiss this
appeal.1 Accordingly, this appeal is dismissed for lack of jurisdiction. See TEX. R. APP. P. 42.3(a).
All pending motions are denied as moot.
GINA M. PALAFOX, Justice
September 10, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
1
This dismissal does not prevent Appellant from later pursuing a timely appeal from a final judgment in this case.
3