Nichols v. Nichols

*805ANNE GARDNER, Justice,

concurring.

I differ with the majority’s characterization of the final decree of divorce as an interlocutory judgment. I believe it was a judgment rendered after a conventional trial on the merits and was thus subject to the presumption that it disposed of all claims and parties and is final. As stated in Lehmann v. Har-Con Corp.,

When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered, ... it will be presumed for appeal purposes that the court intended to and did dispose of all parties legally before it and all issues made by the pleadings between such parties.

39 S.W.3d 191, 198 (Tex.2001) (quoting N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex.1966) (enunciating the test for determining when, in most instances, judgments in which parties and issues made by the pleadings are not disposed of in express language but are nevertheless final for appeal purposes)).4

As the trial court here noted in its order, a severance order is not effective until signed. McRoberts v. Ryals, 863 S.W.2d 450, 452-54 (Tex.1993). But I agree with the majority that nothing in Rule 41 requires a written severance order to be signed before the remaining case is submitted to the trier of fact. Absent a written order before the final divorce judgment was signed, however, and had the judgment here not been challenged by a timely motion to reopen or to modify, I believe the presumption of finality would apply and the trial court’s dismissal would have been correct. See Aldridge, 400 S.W.2d at 896-97.5

Appellants timely filed their motion to reopen and to modify the final divorce decree, and the record established that the parties and the court had intended to sever the third party claims before judgment.6 Because the divorce court was acting within its extended plenary power, it was not precluded from signing a written order of severance within that period after the final judgment was signed. And because the divorce court did so, I agree with the majority that the trial court erred in dismissing the severed claims. Therefore, I concur in the result.

. Although the issue of whether the previous judgment disposed of the claims against Kenneth and the bank, and should therefore be dismissed, appears to be one of res judicata effect rather than finality for purposes of appeal, the principles for determining finality are the same. See Mower v. Boyer, 811 S.W.2d 560, 562-63 (Tex. 1991) (holding an interlocutory judgment was not final and was non-appealable and therefore was not entitled to res judicata effect); Restatement (Second) of Judgments 13 (1982).

. A judgment rendered after a conventional trial on the merits need not dispose of every party and issue in order for the Aldridge presumption of finality to apply. Vaughn v. Drennon, 324 S.W.3d 560, 560 (Tex.2010).

.The presumption of finality is subject to the qualification, as stated in Lehmann, that any doubt as to the judgments finality ... must be resolved by a determination of the intention of the court as gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties. Vaughn, 324 S.W.3d at 560 (quoting Lehmann, 39 S.W.3d at 203). Here, the record, including the conduct of the parties, establishes not that the judgment was intended to be interlocutory but that the court and the parties intended to sever the claims against Kenneth and the bank.