Alan Neil McGilbery v. Doris Felix McGilbery

Opinion

Opinion issued October 11, 2012.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-11-00969-CV ——————————— ALAN NEIL MCGILBERY, Appellant V. DORIS FELIX MCGILBERY, Appellee

On Appeal from the 247th District Court Harris County, Texas Trial Court Case No. 2011-15414

MEMORANDUM OPINION

This case arises out of a suit for divorce. The trial court entered a declaratory

judgment finding that a common-law marriage exists between Doris McGilbery

and Alan McGilbery. Alan appeals from the trial court’s judgment, contending that the trial court erred in concluding that he is informally married. As the trial court’s

order does not dispose of the pending divorce action between the parties, we

dismiss the appeal for want of jurisdiction.

Background

Doris sued Alan for divorce in 2010. Alan generally denied Doris’s suit and

entered a plea in abatement, contending that no marriage existed between the

parties to dissolve. In reply, Doris petitioned for a declaratory judgment that she

and Alan informally married after their 1999 divorce. After a bench trial on Doris’s

declaratory judgment action, the trial court entered judgment in the same number

as the underlying divorce suit, finding that a common-law marriage exists between

Doris and Alan.

Discussion

The general rule is that, absent a statutory exception, an appeal may only be

taken from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195

(Tex. 2001). A judgment is final for purposes of appeal if it disposes of all pending

parties and claims in the record. Id.

The trial court’s November 8, 2011 judgment is interlocutory. The

declaratory judgment finds that the parties are informally married; it does not,

however, address Doris’s suit for divorce. Nor does the judgment effectively

dispose of the underlying divorce action, as the trial court merely entered judgment

2 declaring that the parties are informally married. Although Doris’s petition for

declaratory relief bears the number of the underlying divorce action and a separate

number, nothing in the record reveals that proceedings were severed. The trial

court entered judgment of an informal marriage in the same number as the

underlying divorce proceedings. Because the divorce action remains pending

before the trial court, the court’s November 8, 2011 judgment is interlocutory.

Hence, we lack jurisdiction over this appeal.

Citing Nguyen v. Nguyen, Alan contends that appellate jurisdiction for

review of the trial court’s order is proper. 355 S.W.3d 82, 87 (Tex. App.—Houston

[1st Dist.] 2011, pet. denied). But Nguyen is inapposite to the facts of this case.

There, the trial court’s judgment declared that no valid marriage had existed

between the parties, thereby effectively disposing of all claims between the

putative husband and wife. Id. The judgment provided that it disposed of all parties

and claims in the action. It was, therefore, a final judgment. In this case, the trial

court’s judgment does not dispose of all pending claims; the divorce action,

namely, remains pending before the trial court.

Conclusion

We lack jurisdiction to review the trial court’s November 8, 2011

interlocutory finding that an informal marriage exists between Doris McGilbery

3 and Alan McGilbery as it does not dispose of the underlying divorce suit between

the parties. Accordingly, we dismiss the appeal for want of jurisdiction.

Jane Bland Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.